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TASMANIA
__________
CORRECTIONS (MISCELLANEOUS
AMENDMENTS) BILL 2016
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - CORRECTIONS ACT 1997 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 83D inserted
83D. Treatment of migration detainees
PART 3 - CORRECTIONS ACT 1997 FURTHER AMENDED
6. Principal Act
7. Section 6 amended (Powers and duties of Director)
8. Section 8A inserted
8A. Surrender of prison service equipment, &c.
9. Section 20 amended (Formal searches)
10. Section 22 amended (Searches and examinations)
11. Section 22A inserted
22A. Use of detector dogs
12. Section 23 amended (Seizure)
13. Section 25A inserted
25A. Power of arrest
[Bill 22]-III
14. Sections 34AA, 34AB and 34AC inserted
34AA. Hire of extra equipment
34AB. Business activities
34AC. Change of name
15. Section 34B amended (Authorised use of force)
16. Section 42 amended (Leave permits)
17. Section 87C inserted
87C. Disclosure of critical health information by health
officials
18. Section 90 amended (Regulations)
19. Schedule 1 amended (Prison offences)
PART 4 - CORRECTIONS REGULATIONS 2008 AMENDED
20. Principal Regulations
21. Regulation 26 amended (Destruction of records on acquittal,
&c.)
PART 5 - MISCELLANEOUS
22. Further amendment, &c., of Corrections Regulations 2008
23. Repeal of Act
2
CORRECTIONS (MISCELLANEOUS
AMENDMENTS) BILL 2016
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
23 August 2016
(Brought in by the Minister for Health, the Honourable
Michael Darrel Joseph Ferguson)
A BILL FOR
An Act to amend the Corrections Act 1997 and the
Corrections Regulations 2008
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Corrections
(Miscellaneous Amendments) Act 2016.
2. Commencement
(1) Except as provided in this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) Part 3 commences on a day to be proclaimed.
[Bill 22] 3
Corrections (Miscellaneous Amendments) Act 2016
Act No. of
s. 3 Part 2 - Corrections Act 1997 Amended
PART 2 - CORRECTIONS ACT 1997 AMENDED
3. Principal Act
In this Part, the Corrections Act 1997* is
referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
inserting after the definition of Mental Health
Tribunal the following definition:
migration detainee - see section 83D;
5. Section 83D inserted
After section 83C of the Principal Act, the
following section is inserted in Part 9:
83D. Treatment of migration detainees
(1) In this section -
migration detainee means a person
who is -
(a) not an Australian citizen within
the meaning of the Australian
Citizenship Act 2007 of the
Commonwealth; and
*No. 51 of 1997
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Part 2 - Corrections Act 1997 Amended s. 5
(b) being detained under the
Migration Act 1958 of the
Commonwealth; and
(c) not, apart from his or her
detention under the Migration Act
1958 of the Commonwealth,
subject to any order of a court by
which he or she is remanded or
otherwise committed to prison.
(2) Except as provided by subsection (3) and
as may be provided pursuant to
subsection (4), the provisions of this Act
have the same application to migration
detainees as they have to detainees.
(3) Paragraphs (c), (d), (e), (f) and (g) of
section 42(1) do not apply to migration
detainees.
(4) Without affecting the generality of
section 90(1), the regulations may
provide that specified provisions of the
regulations have qualified application or
no application to migration detainees.
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s. 6 Part 3 - Corrections Act 1997 Further Amended
PART 3 - CORRECTIONS ACT 1997 FURTHER
AMENDED
6. Principal Act
In this Part, the Corrections Act 1997* is
referred to as the Principal Act.
7. Section 6 amended (Powers and duties of Director)
Section 6 of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(4) A person who is a correctional officer or
State Service corrections employee must
comply with the standing orders made by
the Director in so far as they apply to
such an officer or employee.
(5) The obligation under subsection (4) is,
for correctional officers and State Service
corrections employees, taken to be a
conduct requirement under section 9 of
the State Service Act 2000.
8. Section 8A inserted
After section 8 of the Principal Act, the
following section is inserted in Part 2:
8A. Surrender of prison service equipment, &c.
(1) In this section -
*No. 51 of 1997
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item of identification includes -
(a) an access pass; and
(b) a security pass; and
(c) a tag;
prescribed period means -
(a) in respect of an item of
identification, equipment,
clothing or insignia, the 7-
day period immediately
following the day on
which the relevant person
ceases to be a correctional
officer or State Service
corrections employee, or
such longer period as the
Director, by notice in
writing given before or
during that 7-day period,
may allow the person; and
(b) in respect of a firearm or
ammunition, the 24-hour
period immediately after
the relevant person ceases
to be a correctional officer
or State Service
corrections employee.
(2) This section applies to a person who
ceases for any reason to hold an
appointment or employment as a
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correctional officer or State Service
corrections employee.
(3) The person must surrender to the
Director, within the prescribed period -
(a) all firearms and ammunition; and
(b) all items of identification,
equipment, clothing and
insignia -
that were on issue to that person as a
correctional officer or State Service
corrections employee immediately before
he or she ceased to hold that appointment
or employment.
Penalty: Fine not exceeding 20 penalty
units or imprisonment for a term
not exceeding 3 months.
(4) However, subsection (3) does not apply
to the person in respect of an item of
identification, equipment, clothing or
insignia if it is an item of a kind that,
under the standing orders in force at the
relevant time, the person may retain on
ceasing to hold the relevant appointment
or employment.
(5) If the person fails to surrender an item of
identification, equipment, clothing or
insignia as required by subsection (3), the
Director, as soon as practicable after the
prescribed period, is to give the person a
notice requiring that the item be
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Part 3 - Corrections Act 1997 Further Amended s. 8
surrendered to the Director forthwith or
within such time as he or she considers
reasonable in the circumstances and
specifies in the notice.
(6) The notice under subsection (5) is to be
given by registered post addressed to the
person's place of residence last known to
the Director.
(7) The Commissioner of Police, at the
written request of the Director, may
apply to a justice for a warrant to enter
and search any place and do either or
both of the following:
(a) seize any firearm or ammunition
found in the place that ought to
have been surrendered to the
Director pursuant to
subsection (3) but has not been so
surrendered;
(b) seize any item of identification,
equipment, clothing or insignia
found in the place that ought to
have been surrendered to the
Director pursuant to
subsections (3) and (5) but has
not been so surrendered.
(8) A justice may issue a warrant if satisfied
that there are reasonable grounds for
believing that there is on or in any place
either or both of the following:
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s. 8 Part 3 - Corrections Act 1997 Further Amended
(a) a firearm or ammunition, or both,
that ought to have been
surrendered to the Director
pursuant to subsection (3) but has
not been so surrendered;
(b) an item of identification,
equipment, clothing or insignia
that ought to have been
surrendered to the Director
pursuant to subsections (3) and
(5) but has not been so
surrendered.
(9) A warrant is to authorise a police officer
to -
(a) enter and search the place
specified in the warrant; and
(b) seize any thing that the police
officer reasonably believes is
required to be surrendered to the
Director under this section.
(10) A warrant is to specify the date on which,
and time by which, the warrant ceases to
have effect.
(11) If the occupier of the place is not present
or refuses permission, the police officer
may -
(a) proceed to execute the warrant
using any reasonable force
necessary; and
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(b) do anything reasonably required
to execute the warrant.
9. Section 20 amended (Formal searches)
Section 20 of the Principal Act is amended as
follows:
(a) by omitting "carried out by an electronic
or mechanical device" from the
definition of formal search in subsection
(1);
(b) by inserting the following subsection
after subsection (3):
(4) In carrying out a formal search, a
correctional officer may employ -
(a) such assistance as he or
she believes on
reasonable grounds to be
necessary for the purpose;
and
(b) such means as he or she
believes on reasonable
grounds to be necessary
for the purpose including,
but not limited to,
scanning devices and
detection devices.
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s. 10 Part 3 - Corrections Act 1997 Further Amended
10. Section 22 amended (Searches and examinations)
Section 22 of the Principal Act is amended as
follows:
(a) by omitting subsections (1) and (2) and
substituting the following subsections:
(1) The Director may, for the security
or good order of the prison or the
prisoners or detainees, at any time
order a correctional officer or
State Service corrections
employee to -
(a) search or examine, or
search and examine, any
part of the prison; or
(b) search or examine, or
search and examine, any
vehicle, equipment,
container or other thing in
the prison; or
(c) conduct any search or
examination, or search
and examination, under
this subsection at random.
(1A) The Director may, for the security
or good order of the prison or the
prisoners or detainees, at any time
order a correctional officer to -
(a) search or examine, or
search and examine, a
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Part 3 - Corrections Act 1997 Further Amended s. 10
prisoner or detainee, a
visitor to the prison, a
correctional officer or any
person appointed or
employed for the
purposes of this Act or
any other person in the
prison; or
(b) instead of or as well as a
formal search required
under section 20, require
a person wishing to enter
the prison to submit to a
search or examination, or
search and examination,
of the person and of
anything in the person's
possession or under the
person's control; or
(c) conduct any search or
examination, or search
and examination, under
this subsection at random.
(2) If a person other than a prisoner,
detainee, correctional officer or
State Service corrections
employee refuses to submit to a
search or examination, or search
and examination, under this
section while inside the prison,
the Director may order the person
to leave the prison immediately.
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s. 11 Part 3 - Corrections Act 1997 Further Amended
(b) by omitting from subsection (4) "search
or examination" and substituting "search
or examination, or search and
examination,";
(c) by omitting subsection (5) and
substituting the following subsection:
(5) In carrying out a search or
examination, or search and
examination, pursuant to an order
of the Director given under this
section, a correctional officer or
State Service corrections
employee may employ -
(a) such assistance as he or
she believes on
reasonable grounds to be
necessary for the purpose;
and
(b) such means as he or she
believes on reasonable
grounds to be necessary
for the purpose including,
but not limited to,
scanning devices and
detection devices.
11. Section 22A inserted
After section 22 of the Principal Act, the
following section is inserted in Division 2:
14
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Part 3 - Corrections Act 1997 Further Amended s. 11
22A. Use of detector dogs
(1) In this section -
detector dog means a dog that has
been, or is being, trained by a
State or Commonwealth law
enforcement agency to detect
particular substances or items;
detector dog handler means a person
whose duties, whether as a police
officer, correctional officer or
otherwise, include the handling of
a detector dog;
search means -
(a) a formal search carried
out by a correctional
officer under section 20;
or
(b) a search or examination,
or search and
examination, carried out
by a correctional officer
or State Service
corrections employee
pursuant to an order of the
Director given under
section 22.
(2) A correctional officer or State Service
corrections employee who is carrying out
a search may be accompanied and
assisted by -
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s. 11 Part 3 - Corrections Act 1997 Further Amended
(a) a detector dog; and
(b) whether or not the officer or
employee is a detector dog
handler, a detector dog handler.
(3) If subsection (2) applies, the detector dog
may be used in such manner as the
persons carrying out or assisting with the
search think fit having regard to the
nature of the search and the specific
capabilities of the detector dog.
(4) A person must not, without lawful
excuse, do anything that is likely to
impede or interfere with the effective use
of a detector dog in a search.
Penalty: Fine not exceeding 20 penalty
units or imprisonment for a term
not exceeding 12 months.
(5) To avoid doubt, it is immaterial for the
purposes of subsection (4) whether the
impeding or interference occurs during
the relevant search or at any time before
the relevant search.
(6) A person must not, without lawful
excuse, strike, injure, maim or kill a
detector dog that accompanies and assists
a correctional officer or State Service
corrections employee in carrying out a
search.
16
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Act No. of
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Penalty: Fine not exceeding 20 penalty
units or imprisonment for a term
not exceeding 12 months.
(7) To avoid doubt, it is immaterial for the
purposes of subsection (6) whether the
striking, injuring, maiming or killing
occurs during the relevant search or
immediately before or immediately after
the relevant search.
(8) Neither the Crown nor any correctional
officer, State Service corrections
employee or detector dog handler is
liable to any action, liability, claim or
demand merely because a detector dog -
(a) entered or was present at a prison;
or
(b) initiated or inadvertently made
contact with a prisoner, detainee,
visitor or other person; or
(c) initiated or inadvertently made
contact with anything in a
prisoner's, detainee's, visitor's or
other person's possession.
12. Section 23 amended (Seizure)
Section 23 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)
"searches under sections 20 and 22" and
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s. 12 Part 3 - Corrections Act 1997 Further Amended
substituting "a formal search pursuant to
section 20 or a search or examination, or
search and examination, pursuant to an
order of the Director given under
section 22(1) or (1A),";
(b) by inserting the following subsection
after subsection (1):
(1A) In carrying out a search or
examination, or search and
examination, pursuant to an order
of the Director given under
section 22(1), a State Service
corrections employee may seize
any thing found in the course of
the search or examination or
search and examination which the
State Service corrections
employee believes on reasonable
grounds jeopardises or is likely to
jeopardise the security or good
order of the prison or the safety
of persons in the prison.
(c) by omitting subsection (2) and
substituting the following subsection:
(2) A correctional officer or State
Service corrections employee
who seizes any thing pursuant to
subsection (1) or (1A) is to
immediately inform the Director.
(d) by omitting from subsection (3) "under"
and substituting "pursuant to".
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Act No. of
Part 3 - Corrections Act 1997 Further Amended s. 13
13. Section 25A inserted
After section 25 of the Principal Act, the
following section is inserted in Division 2:
25A. Power of arrest
A police officer may arrest a person
without warrant if the police officer
believes on reasonable grounds that the
person has committed an offence under
section 12(3), section 15(3),
section 18(2), section 18(4),
section 19(2), section 22A(4),
section 22A(6) or section 22(3).
14. Sections 34AA, 34AB and 34AC inserted
After section 34 of the Principal Act, the
following sections are inserted in Part 4:
34AA. Hire of extra equipment
(1) The Director may, on request, allow a
prisoner or detainee to hire equipment
and items additional to the standard
equipment and items with which the
prisoner or detainee is issued.
(2) The additional equipment or items may
be hired on such conditions and for such
hiring fee as the Director determines.
(3) The hiring fee -
(a) is not to exceed the reasonable
cost of providing and, if
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s. 14 Part 3 - Corrections Act 1997 Further Amended
applicable, operating the
additional equipment or items;
and
(b) may be a nominal fee.
(4) The Director may recover the hiring fee
from moneys that the Director holds on
the prisoner's or detainee's behalf.
34AB. Business activities
(1) In this section -
conduct a business includes making
preparations to conduct a
business.
(2) A prisoner must not conduct a business
in or from prison without the consent of
the Director, given specifically for that
business.
(3) In determining whether to give consent
for a prisoner to conduct a business in or
from prison, the Director may have
regard to such matters as he or she thinks
fit in the circumstances, including -
(a) whether the conduct of the
business could reasonably be
expected to excite adverse
community reaction, particularly
from victims of crime; and
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Part 3 - Corrections Act 1997 Further Amended s. 14
(b) whether there is any risk that any
person could use the business for
unlawful ends; and
(c) whether the conduct of the
business could disrupt prison
routine or compromise its
management, good order or
security; and
(d) whether the business is one that
would be reasonably practicable
and manageable to conduct in a
prison environment; and
(e) the regulatory requirements of
conducting the business, and
associated compliance and legal
capacity issues; and
(f) whether conducting a business of
a like kind was the basis for, or a
relevant factor in, previous
unlawful conduct of the prisoner;
and
(g) whether there could be
rehabilitative benefits for the
prisoner.
(4) The Director, if in his or her absolute
discretion he or she considers it
appropriate to do so, may withdraw a
consent given under this section at any
time.
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(5) No liability attaches to the Director or the
Crown in respect of any consent given by
the Director in good faith to a prisoner
under this section or the withdrawal by
the Director of any such consent.
34AC. Change of name
(1) In this section -
change of name application means an
application to a Registrar for the
registration of a change of a
prisoner's or detainee's name;
make an application, includes causing
or allowing the application to be
made on one's behalf;
Register means the Tasmanian
Register or the equivalent
Register of another State or a
Territory;
Registrar means -
(a) the Tasmanian Registrar;
or
(b) an authority responsible,
under a law of another
State or a Territory, for
the registration of births,
deaths and marriages;
Tasmanian Register means the
Register of Births, Deaths and
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Part 3 - Corrections Act 1997 Further Amended s. 14
Marriages under the Births,
Deaths and Marriages
Registration Act 1999;
Tasmanian Registrar means the
Registrar of Births, Deaths and
Marriages appointed or employed
under section 4 of the Births,
Deaths and Marriages
Registration Act 1999.
(2) A prisoner or detainee must not make a
change of name application without the
consent of the Director, given
specifically for that application.
(3) In determining whether to give consent
for a prisoner or detainee to make a
change of name application, the Director
may have regard to such matters as he or
she thinks fit in the circumstances,
including -
(a) whether the proposed change of
name could reasonably be
expected to excite adverse
community reaction, particularly
from victims of crime; and
(b) whether there is any risk that the
proposed change of name could
be used for unlawful or improper
ends (including disguise or
evasion); and
(c) whether the proposed change of
name could disrupt prison
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s. 14 Part 3 - Corrections Act 1997 Further Amended
routine or compromise its
management, good order or
security; and
(d) whether the prisoner or detainee
has previously changed his or her
name or has any history of using
aliases; and
(e) whether, so far as the Director is
aware, every complaint or
information alleging an offence
by the prisoner or detainee
against the law of any State or
Territory or the Commonwealth
has been finally dealt with.
(4) The Director is to notify the relevant
prisoner or detainee of a consent or
refusal of consent under subsection (2),
and, in the latter case, the reasons for the
refusal, as soon as practicable after that
determination is made.
(5) The Director is to notify the relevant
Registrar and the secretary of the Board
of a consent under subsection (2),
together with relevant particulars, as
soon as practicable after that
determination is made.
(6) The Tasmanian Registrar is not to
register a change of name if he or she is
aware that the applicant for the change is
a prisoner or detainee and the Tasmanian
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Registrar has not received the requisite
notification under subsection (5).
(7) If a prisoner or detainee succeeds by any
means in having a change of name
registered in any State or Territory
without being given the requisite consent
under subsection (2), the Director may
apply to the relevant Registrar to correct
the relevant Register by cancelling the
relevant entry.
(8) On receipt of an application under
subsection (7), the Tasmanian Registrar,
unless prevented from so doing by an
order of a court, is to correct the
Tasmanian Register accordingly.
(9) In the event of any inconsistency
between the provisions of this section
and those of the Births, Deaths and
Marriages Registration Act 1999, the
provisions of this section prevail.
15. Section 34B amended (Authorised use of force)
Section 34B(1) of the Principal Act is amended
by inserting after paragraph (a) the following
paragraph:
(ab) to carry out a search or examination, or
search and examination, pursuant to an
order of the Director given under
section 22;
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s. 16 Part 3 - Corrections Act 1997 Further Amended
16. Section 42 amended (Leave permits)
Section 42 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (8):
(8A) If any correctional officer who is
not a custodian of a person to
whom a leave permit is granted
believes on reasonable grounds
that the person has failed to
comply with a condition or
restriction to which the permit is
subject or that he or she is likely
to so fail to comply, the
correctional officer may return
that person to a prison.
(b) by omitting subsections (9) and (10) and
substituting the following subsections:
(9) For the purposes of subsection (8)
or (8A), a custodian or a
correctional officer may request
any person to give such
assistance as the custodian or
correctional officer may require.
(10) A request made by a custodian or
correctional officer to a person
pursuant to subsection (9) is
sufficient warrant to that person
to assist the custodian or
correctional officer in accordance
with the terms of the request.
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17. Section 87C inserted
After section 87B of the Principal Act, the
following section is inserted in Part 9:
87C. Disclosure of critical health information by
health officials
(1) In this section -
health information, concerning a
prisoner or detainee, means
information about his or her
health or medical treatment;
health official means any of the
following:
(a) the Chief Forensic
Psychiatrist;
(b) the chief executive officer
of a Tasmanian Health
Organisation within the
meaning of the
Tasmanian Health
Organisations Act 2011;
(c) a person prescribed by the
regulations;
(d) a member of a class of
persons prescribed by the
regulations.
(2) A health official may disclose to the
Director such health information about a
prisoner or detainee as the Director
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reasonably requires for the treatment,
care and rehabilitation of the prisoner or
detainee.
(3) A health official who discloses health
information about a prisoner or detainee
pursuant to subsection (2) -
(a) does not, by reason of the
disclosure, incur any criminal,
civil or administrative liability;
and
(b) is not, by reason of the
disclosure -
(i) taken to have breached
any rule of law or practice
that would otherwise
prohibit the person from
making the disclosure; or
(ii) taken to have broken any
professional or other oath,
or breached any
professional or other
code, standard or
guideline of ethics or
etiquette that might
otherwise bar the person
from, or condemn the
person for, making the
disclosure; or
(iii) liable to condemnation or
disciplinary action by any
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professional body or other
person.
(4) Subsection (3) has effect despite the
Personal Information Protection Act
2004 or any other law relating to the
confidentiality or privacy of information.
(5) The Director is not to use health
information disclosed to him or her
pursuant to subsection (2) except for the
purposes of determining and managing
the relevant prisoner's or detainee's
treatment, care and rehabilitation.
18. Section 90 amended (Regulations)
Section 90(2)(c) of the Principal Act is amended
by omitting "searches" and substituting
"searches or examinations, or searches and
examinations,".
19. Schedule 1 amended (Prison offences)
Part 2 of Schedule 1 to the Principal Act is
amended as follows:
(a) by inserting "or detainee's" after
"prisoner's" in column 2 of item 18 in
the table;
(b) by inserting after item 35 the following:
35A. Striking, injuring, maiming or killing, without lawful
excuse, a detector dog.
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Act No. of
s. 19 Part 3 - Corrections Act 1997 Further Amended
35B. Impeding or interfering, without lawful excuse, with a
detector dog.
35C. Conducting a business in or from prison without the
Director's consent.
35D. Making, or causing or allowing the making of, a change
of name application without the Director's consent.
30
Corrections (Miscellaneous Amendments) Act 2016
Act No. of
Part 4 - Corrections Regulations 2008 Amended s. 20
PART 4 - CORRECTIONS REGULATIONS 2008
AMENDED
20. Principal Regulations
In this Part, the Corrections Regulations 2008*
are referred to as the Principal Regulations.
21. Regulation 26 amended (Destruction of records on
acquittal, &c.)
Regulation 26 of the Principal Regulations is
amended as follows:
(a) by omitting from paragraph (b)
"imprisoned." and substituting
"imprisoned; or";
(b) by inserting the following paragraph after
paragraph (b):
(c) in the case of a migration
detainee, he or she is released
under the Migration Act 1958 of
the Commonwealth.
*S.R. 2008, No. 82
31
Corrections (Miscellaneous Amendments) Act 2016
Act No. of
s. 22 Part 5 - Miscellaneous
PART 5 - MISCELLANEOUS
22. Further amendment, &c., of Corrections
Regulations 2008
The amendment by this Act of provisions of the
Corrections Regulations 2008 does not bar the
subsequent amendment or rescission of those
provisions by regulation.
23. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which all of the
provisions of this Act commence.
32 Government Printer, Tasmania