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This is a Bill, not an Act. For current law, see the Acts databases.


INSPECTOR OF CUSTODIAL SERVICES BILL 2003

                          Western Australia



      Inspector of Custodial Services Bill 2003

                             CONTENTS


         Part 1 -- Preliminary
1.       Short title                                             2
2.       Commencement                                            2
3.       Definitions                                             2
4.       Notes not part of the law                               4
         Part 2 -- Office of Inspector
         Division 1 -- Inspector
5.       Office of Inspector continued                           5
6.       Appointment of Inspector                                5
7.       Conditions of appointment                               5
8.       Oath or affirmation                                     6
9.       Removal of Inspector from office                        6
10.      Portability of superannuation and other entitlements    6
         Division 2 -- Acting appointments
11.      Acting appointments made by Governor                    7
12.      Acting appointments made by Inspector                   8
13.      Matters relevant to all acting appointments             8
14.      Acting Inspector: functions etc.                        8
15.      Savings                                                 8
         Division 3 -- Staff
16.      Staff                                                   9
         Part 3 -- Relationship with Minister
17.      Directions of Minister                                 10
18.      Minister to have access to information                 10




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Inspector of Custodial Services Bill 2003



Contents



            Part 4 -- Functions and powers of
                 Inspector
            Division 1 -- Functions
   19.      Inspection of places: mandatory                          12
   20.      Inspection report                                        12
   21.      Inspection of places: occasional                         12
   22.      Review of custodial services: occasional                 12
   23.      Reporting on occasional inspections and reviews          13
   24.      Providing reports, draft inspection reports to
            interested persons                                       13
   25.      Notifications                                            13
   26.      Relationship of Inspector's functions to other laws      14
            Division 2 -- Powers
   27.      Powers of Inspector                                      14
   28.      Access to prisons etc.                                   14
   29.      Access to detention centres etc.                         15
   30.      Access to court custody centres, lock-ups etc.           16
   31.      Matters relevant to access powers                        17
   32.      Offence to hinder etc. persons exercising access
            powers                                                   18
            Part 5 -- Reporting
   33.      Annual reporting                                         19
   34.      Inspection reports and reports of occasional
            inspections and reviews                                  20
   35.      Laying before Parliament annual reports, inspection
            reports and reports of occasional inspections and
            reviews                                                  20
   36.      Chief judicial officers to receive copy of inspection
            reports, reports of occasional inspections and reviews
            affecting the court                                      21
   37.      Submissions in certain cases before completion of
            reports                                                  22
   38.      Reporting requirements under Financial
            Administration and Audit Act 1985                        23
            Part 6 -- Independent visitor service
   39.      Appointment of independent prison visitors               24
   40.      Duties of independent prison visitors                    24


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                             Inspector of Custodial Services Bill 2003



                                                             Contents



41.   Appointment of independent detention centre visitors      25
42.   Duties of independent detention centre visitors           25
43.   Inspector to deal with reports of independent prison
      visitors and independent detention centre visitors        26
      Part 7 -- Disclosure of information
44.   Disclosure of information permitted for consultation
      purposes                                                  27
45.   Disclosure of certain other information permitted         27
46.   Disclosure of information permitted if in certain
      interests to do so                                        28
47.   Confidentiality                                           29
48.   Directions to not disclose information                    29
      Part 8 -- Other offences
49.   Hindering and other offences                              30
50.   Victimisation                                             31
      Part 9 -- Miscellaneous
51.   Security and safety considerations                        32
52.   Protection from liability                                 32
53.   Documents sent to or by the Inspector not admissible      32
54.   Protection for proceedings in Cabinet                     33
55.   Regulations                                               33
56.   Consequential amendments to other Acts and
      regulations                                               33
57.   Savings and transitional provisions                       34
      Schedule 1 -- Financial Administration
          and Audit Act 1985 application to
          the office of the Inspector                           35

      Schedule 2 -- Consequential
          amendments to Acts
          and regulations
1.    Anti-Corruption Commission Act 1988 amended               37
2.    Constitution Acts Amendment Act 1899 amended              37
3.    Court Security and Custodial Services Act 1999
      amended                                                   37
4.    Freedom of Information Act 1992 amended                   38

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Inspector of Custodial Services Bill 2003



Contents



   5.       Parliamentary Commissioner Act 1971 amended             38
   6.       Prisons Act 1981 amended and savings provision          39
   7.       Young Offenders Act 1994 amended and savings
            provision                                               41
   8.       Prisons Regulations 1982 amended                        42
   9.       Public Sector Management (General) Regulations
            1994 amended                                            43
   10.      Salaries and Allowances Regulations 1975 amended        44
   11.      State Superannuation Regulations 2001 amended           44
            Schedule 3 -- Savings and transitional
   1.       Definitions                                             45
   2.       Interpretation Act 1984 applies                         45
   3.       Persons holding offices under, or employed etc. for
            purposes of repealed provisions                         45
   4.       Reporting                                               46
   5.       Calculating maximum period between inspections for
            first inspection of a place under this Act              46
   6.       Independent prison visitors and independent detention
            centre visitors                                         46
            Defined Terms




page iv
                           Western Australia


                     LEGISLATIVE ASSEMBLY



      Inspector of Custodial Services Bill 2003


                               A Bill for


An Act to provide for an independent agency to inspect certain
places where prisoners, detainees or other persons in custody are
held and to review certain custodial services, to provide for an
independent visitor service for prisons and detention centres, to
consequentially amend various Acts and regulations, and for related
purposes.



The Parliament of Western Australia enacts as follows:




                                                              page 1
     Inspector of Custodial Services Bill 2003
     Part 1          Preliminary

     s. 1



                            Part 1 -- Preliminary
     1.       Short title
              This Act may be cited as the Inspector of Custodial Services
              Act 2003.

5    2.       Commencement
              This Act comes into operation on the day on which it receives
              the Royal Assent.

     3.       Definitions
              In this Act, unless the contrary intention appears --
10            "CEO" has the meaning giving to that term in the Court
                  Security and Custodial Services Act 1999 section 3;
              "chief judicial officer of a court" has the meaning given to
                  that term in the Court Security and Custodial Services
                  Act 1999 section 3;
15            "court custodial services" has the meaning given to that term
                  in the Court Security and Custodial Services Act 1999
                  section 3;
              "court custody centre" has the meaning given to that term in
                  the Court Security and Custodial Services Act 1999
20                section 3;
              "court premises" has the meaning given to that term in the
                  Court Security and Custodial Services Act 1999 section 3;
              "custodial service", in relation to a detention centre, means --
                  (a) the management, control or security of the centre; or
25                (b) the security, control, safety, care or welfare of
                         detainees at the centre,
                  and includes an administrative arrangement in relation to a
                  matter mentioned in paragraph (a) or (b);
              "custodial service", in relation to a prison, means --
30                (a) the management, control or security of the prison; or

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                                   Inspector of Custodial Services Bill 2003
                                                 Preliminary          Part 1

                                                                                 s. 3



           (b) the security, control, safety, care or welfare of
               prisoners committed to the prison,
         and includes an administrative arrangement in relation to a
         matter mentioned in paragraph (a) or (b);
5    "custodial service (CSCS Act)" has the meaning given to
         "custodial service" in the Court Security and Custodial
         Services Act 1999 section 3 and includes an administrative
         arrangement in relation to such a matter;
     "detainee" means a person who is detained in a detention
10       centre;
     "detention centre" has the same meaning as it has in the Young
         Offenders Act 1994 section 3 and includes any other place
         where a detainee is detained under that Act that is managed
         or otherwise controlled by the chief executive officer as
15       defined in that section;
     "independent detention centre visitor" means a person
         appointed under section 41 to be an independent detention
         centre visitor;
     "independent prison visitor" means a person appointed under
20       section 39 to be an independent prison visitor;
     "inspection report" means a report under section 20;
     "Inspector" means the holder of the office of Inspector of
         Custodial Services continued by section 5;
     "lock-up" has the meaning given to that term in the Court
25       Security and Custodial Services Act 1999 section 3;
     Note: "lock-up" in this Act does not include a lock-up that is managed or
           controlled by the Commissioner of Police.
     "person in custody" means --
         (a) a person in custody as defined in the Court Security
30             and Custodial Services Act 1999 section 3 for whom
               the CEO is responsible under that Act; or
         (b) an intoxicated detainee as defined in the Court
               Security and Custodial Services Act 1999 section 3
               for whom the CEO is responsible under that Act;

                                                                           page 3
     Inspector of Custodial Services Bill 2003
     Part 1          Preliminary

     s. 4



              "prison" has the meaning given to that term in the Prisons
                   Act 1981 section 3(1) and includes any other place where a
                   prisoner is confined or kept under that Act that is managed
                   or otherwise controlled by the chief executive officer as
5                  defined in that section;
              "prisoner" has the meaning given to that term in the Prisons
                   Act 1981 section 3(1);
              "public service officer" has the meaning given to that term in
                   the Public Sector Management Act 1994 section 3(1);
10            "staff ", in relation to the Inspector, means a person referred to
                   in section 16(1), (2) or (3).

     4.       Notes not part of the law
              Notes in this Act are provided to assist understanding and do not
              form part of the Act.




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                                         Inspector of Custodial Services Bill 2003
                                                Office of Inspector         Part 2
                                                          Inspector    Division 1
                                                                               s. 5



                         Part 2 -- Office of Inspector
                              Division 1 -- Inspector
     5.         Office of Inspector continued
                The office of Inspector of Custodial Services created by the
5               Prisons Act 1981 section 109A is continued.

     6.         Appointment of Inspector
          (1)   The Governor is to appoint an appropriately qualified person to
                the office of Inspector.
          (2)   The Public Sector Management Act 1994 does not apply to, or
10              in relation to, the appointment of the Inspector and the Inspector
                is not subject to that Act.
          (3)   Subject to this Act, the Inspector holds office for such term of
                not more than 7 years as is specified in the appointment and is
                eligible for reappointment for one or more terms each of not
15              more than 7 years.
          (4)   A person who is or has been within the preceding 3 years a
                member of the Parliament of the Commonwealth or any State or
                Territory cannot be appointed as Inspector.

     7.         Conditions of appointment
20        (1)   The Inspector --
                 (a) is to be paid salary and allowances at the yearly rates
                       that are determined by the Salaries and Allowances
                       Tribunal established by the Salaries and Allowances
                       Act 1975; and
25               (b) has the leave and other entitlements that are determined
                       by the Governor and which cannot be reduced during a
                       term of appointment.




                                                                            page 5
     Inspector of Custodial Services Bill 2003
     Part 2          Office of Inspector
     Division 1      Inspector
     s. 8



           (2)   The salary and allowances payable to the Inspector are to be
                 charged to the Consolidated Fund and this subsection
                 appropriates the Consolidated Fund accordingly.

     8.          Oath or affirmation
5          (1)   Before performing the functions of his or her office the
                 Inspector is to take an oath or affirmation that he or she will
                 faithfully and impartially perform the duties of the office, and
                 that he or she will not, except in accordance with this Act,
                 divulge any information received by him or her under this Act
10               or any other law.
           (2)   The oath or affirmation is to be administered by the Governor.

     9.          Removal of Inspector from office
           (1)   The Governor may remove the Inspector from office --
                  (a) for --
15                        (i) misbehaviour or incompetence; or
                         (ii) physical or mental incapacity, other than
                               temporary illness, impairing the performance of
                               the Inspector's functions;
                       or
20                (b) if the Inspector becomes a bankrupt or applies to take
                       the benefit of any law for the relief of bankrupt or
                       insolvent debtors, compounds with his or her creditors
                       or makes an assignment of salary for their benefit.
           (2)   In subsection (1)(a)(i) --
25               "misbehaviour" includes conduct that renders the Inspector
                      unfit to hold office as Inspector even though the conduct
                      does not relate to any function of the office.

     10.         Portability of superannuation and other entitlements
           (1)   If a public service officer is appointed to the office of Inspector
30               he or she is entitled to retain all existing and accruing rights,

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                                          Inspector of Custodial Services Bill 2003
                                                 Office of Inspector         Part 2
                                               Acting appointments      Division 2
                                                                               s. 11



                 including those as to superannuation, as if his or her service in
                 that office were a continuation of his or her service as a public
                 service officer.
           (2)   If a person ceases to hold the office of Inspector and becomes a
5                public service officer, his or her service in that office is to be
                 regarded as service in the Public Service for the purposes of
                 determining his or her rights, including those as to
                 superannuation, as a public service officer.
           (3)   If --
10                 (a)   immediately before his or her appointment the Inspector
                         occupied an office under the Public Sector Management
                         Act 1994 Part 3; and
                  (b)    his or her term of office as Inspector expires by
                         effluxion of time and he or she is not reappointed,
15               that person is entitled to be appointed to an office under the
                 Public Sector Management Act 1994 Part 3 that is not lower in
                 status than the office which he or she occupied immediately
                 before the appointment to the office of Inspector.

                         Division 2 -- Acting appointments
20   11.         Acting appointments made by Governor
                 The Governor may appoint a person to act in the office of the
                 Inspector --
                   (a) during a vacancy in the office; or
                   (b) during any period or during all periods when the person
25                      holding or appointed to act in that office is absent from
                        duty or is for any other reason unable to perform the
                        functions of the office.




                                                                             page 7
     Inspector of Custodial Services Bill 2003
     Part 2          Office of Inspector
     Division 2      Acting appointments
     s. 12



     12.         Acting appointments made by Inspector
           (1)   If the Governor has not appointed a person under section 11 the
                 Inspector may appoint a person to act in the office of the
                 Inspector in the circumstances referred to in section 11(b) --
5                  (a) for not more than 4 weeks at a time; and
                   (b) for not more than 6 weeks in a 12 month period.
           (2)   If the Inspector appoints a person under subsection (1) and the
                 Governor later appoints a person under section 11 whose term
                 of appointment is to begin before the term of the Inspector's
10               appointee has ended, the term of appointment of the Inspector's
                 appointee has no effect on and from the day when the term of
                 the Governor's appointee begins.

     13.         Matters relevant to all acting appointments
           (1)   A person who is or has been within the preceding 3 years a
15               member of the Parliament of the Commonwealth or any State or
                 Territory cannot be appointed to act in the office of Inspector.
           (2)   An appointment under section 11 or 12 may be made at any
                 time and may be expressed to have effect only in the
                 circumstances specified in the instrument of appointment.

20   14.         Acting Inspector: functions etc.
                 A person who is acting in the office of Inspector is to perform
                 all the Inspector's functions and, when performing those
                 functions, is subject to all relevant provisions of this Act and
                 any other law applying to the Inspector.

25   15.         Savings
                 The validity of anything done by or in relation to a person
                 purporting to act in the office of Inspector under an appointment
                 made under section 11 or 12 cannot be called in question on the
                 ground that --
30                 (a) the occasion for the appointment had not arisen;


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                                          Inspector of Custodial Services Bill 2003
                                                 Office of Inspector         Part 2
                                                               Staff    Division 3
                                                                               s. 16



                  (b)    there is a defect or irregularity in the appointment;
                  (c)    the appointment had ceased to have effect; or
                  (d)    the occasion for the person to act had not arisen or had
                         ceased.

5                                 Division 3 -- Staff
     16.         Staff
           (1)   The staff necessary for the performance of the Inspector's
                 functions are to be appointed under the Public Sector
                 Management Act 1994 Part 3.
10         (2)   A person may be appointed or engaged for the purpose of giving
                 expert advice or other assistance in relation to the performance
                 of the Inspector's functions.
           (3)   The Inspector may by arrangement with the relevant employer
                 make use, either full-time or part-time, of the services of any
15               officer or employee --
                   (a) in the Public Service;
                   (b) in a State agency or instrumentality; or
                   (c) otherwise in the service of the Crown in right of the
                         State.
20         (4)   The Inspector may by arrangement with --
                  (a) a department of the Public Service; or
                  (b) a State agency or instrumentality,
                 make use of any facilities of the department, agency or
                 instrumentality.
25         (5)   An arrangement under subsection (3) or (4) is to be made on
                 such terms as are agreed to by the parties.




                                                                              page 9
     Inspector of Custodial Services Bill 2003
     Part 3          Relationship with Minister

     s. 17



                    Part 3 -- Relationship with Minister
     17.         Directions of Minister
           (1)   Except as provided in this section, the Inspector is not subject to
                 direction by the Minister or any other person in the performance
5                of the Inspector's functions.
           (2)   The Minister may, in writing, direct the Inspector to --
                  (a) inspect a prison, detention centre, court custody centre
                       or lock-up;
                  (b) to review a custodial service in relation to a prison or
10                     detention centre or a custodial service (CSCS Act) or an
                       aspect of that service,
                 and report on a specified matter of significance.
           (3)   The Minister, after consultation with the Inspector, may issue to
                 the Inspector written directions as to the performance of any of
15               the Inspector's functions but a direction cannot be issued in
                 respect of a particular case.
           (4)   The text of each direction under subsection (2) or (3) is to be
                 included in the Inspector's annual report under section 33.
           (5)   The Inspector must comply with a direction under
20               subsection (2) or (3) unless, in the Inspector's opinion, there are
                 exceptional circumstances for not complying.
           (6)   If the Inspector refuses to comply with a direction under
                 subsection (2) or (3) he or she must prepare written reasons for
                 the failure to comply and cause the text of those reasons to be
25               included in the Inspector's annual report under section 33.

     18.         Minister to have access to information
           (1)   Subject to this section the Minister is entitled --
                   (a)   to have information in the possession of the Inspector;
                         and


     page 10
                                    Inspector of Custodial Services Bill 2003
                                     Relationship with Minister        Part 3

                                                                         s. 18



            (b)    where the information is in or on a document, to have,
                   and make and retain copies of, that document.
     (2)   For the purposes of subsection (1) the Minister may --
            (a) request the Inspector to furnish information to the
5                  Minister;
            (b) request the Inspector to give the Minister access to
                   information;
            (c) for the purposes of paragraph (b) make use of the
                   Inspector's staff to obtain the information and furnish it
10                 to the Minister.
     (3)   The Inspector must comply with a request under subsection (2)
           and make his or her staff and facilities available to the Minister
           for the purposes of subsection (2)(c) unless, in the Inspector's
           opinion, it would not be in the public interest to provide the
15         information.
     (4)   If the Inspector refuses to comply with a request under
           subsection (2) he or she must prepare written reasons for the
           failure to comply and cause the text of those reasons to be
           included in the Inspector's annual report under section 33.
20   (5)   In this section --
           "document" includes any tape, disc or other device or medium
                on which information is recorded or stored;
           "information" means information specified, or of a description
                specified, by the Minister that relates to the Inspector's
25              functions.




                                                                      page 11
     Inspector of Custodial Services Bill 2003
     Part 4          Functions and powers of Inspector
     Division 1      Functions
     s. 19



                 Part 4 -- Functions and powers of Inspector
                                Division 1 -- Functions
     19.          Inspection of places: mandatory
                  At least once every 3 years the Inspector is to inspect each --
5                  (a)   prison;
                   (b)   detention centre;
                   (c)   court custody centre; and
                   (d)   lock-up.

     20.          Inspection report
10         (1)    The Inspector is to prepare an inspection report on his or her
                  findings in relation to each inspection under section 19.
           (2)    An inspection report may contain such advice or
                  recommendations as the Inspector considers appropriate in
                  relation to the findings.

15   21.          Inspection of places: occasional
                  In addition to the requirement to inspect a place under
                  section 19, the Inspector may inspect the place at any other time
                  and on any number of occasions.

     22.          Review of custodial services: occasional
20                The Inspector may, at any time, review any of the following or
                  any aspect of the following --
                    (a) a custodial service in relation to a prison;
                    (b) a custodial service in relation to a detention centre;
                    (c) a custodial service (CSCS Act).




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                                          Inspector of Custodial Services Bill 2003
                                  Functions and powers of Inspector          Part 4
                                                         Functions      Division 1
                                                                               s. 23



     23.         Reporting on occasional inspections and reviews
                 The Inspector may, at any time, report to the Minister on any
                 matter relating to an inspection under section 21 or a review
                 under section 22 and give advice or make recommendations as
5                the Inspector considers appropriate in relation to the matter.

     24.         Providing reports, draft inspection reports to interested
                 persons
                 The Inspector may, at any time, deliver to the Minister or any
                 other person having an interest in the subject matter of the
10               document --
                  (a)    a draft inspection report; or
                  (b)    a report prepared by the Inspector on a matter relating to
                         an inspection under section 21 or a review under
                         section 22.

15   25.         Notifications
           (1)   Subject to subsection (2), it is not necessary for any person to be
                 given notice of the Inspector's intention to perform any of the
                 Inspector's functions.
           (2)   The Inspector is to give, within a reasonable time, the chief
20               judicial officer of a court written notice of the Inspector's
                 intention --
                   (a) to inspect a court custody centre that is part of the court
                         premises; or
                   (b) to review any court custodial services, or any aspect of
25                       court custodial services, affecting the court.
           (3)   The Inspector is to consult the chief judicial officer of a court in
                 relation to --
                   (a) an inspection of a court custody centre that is part of the
                         court premises; and
30                 (b) a review of any court custodial services, or any aspect of
                         court custodial services, affecting the court.

                                                                             page 13
     Inspector of Custodial Services Bill 2003
     Part 4          Functions and powers of Inspector
     Division 2      Powers
     s. 26



     26.         Relationship of Inspector's functions to other laws
           (1)   The Inspector is to ensure that the performance of any of the
                 Inspector's functions is not likely to delay, interfere with or
                 duplicate --
5                  (a) an inquiry under the Prisons Act 1981 section 9;
                   (b) an inquiry under the Court Security and Custodial
                         Services Act 1999 section 44;
                   (c) an investigation, or the taking of further action, as
                         defined in the Anti-Corruption Commission Act 1988
10                       section 17, by the Anti-Corruption Commission under
                         that Act; or
                   (d) an investigation by the Parliamentary Commissioner for
                         Administrative Investigations under the Parliamentary
                         Commissioner Act 1971.
15         (2)   The Inspector may refer a complaint or grievance concerning a
                 particular individual to the Parliamentary Commissioner for
                 Administrative Investigations or any other government agency
                 having a function to deal with the matter but it is not a function
                 of the Inspector to deal with the matter other than --
20                 (a) to inform the complainant of the role of the Inspector; or
                   (b) to deal with the matter in the context of an inspection of
                         a place or a review of a custodial service.

                                 Division 2 -- Powers
     27.         Powers of Inspector
25               The Inspector has power to do all things necessary or
                 convenient to be done for or in connection with the performance
                 of the Inspector's functions.

     28.         Access to prisons etc.
           (1)   For the purpose of performing the Inspector's functions under
30               section 19(a), section 21 in relation to a prison, or section 22(a),
                 the Inspector or any person authorised by the Inspector, at any

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                                           Inspector of Custodial Services Bill 2003
                                   Functions and powers of Inspector          Part 4
                                                             Powers      Division 2
                                                                                s. 29



                 time and with any assistants and equipment that the Inspector or
                 authorised person thinks are necessary, may have free and
                 unfettered access to --
                   (a) a prison or any part of a prison;
5                  (b) a prisoner in a prison;
                   (c) a person whose work is concerned with a prison;
                   (d) a vehicle used to transport prisoners;
                   (e) a prisoner in such a vehicle;
                    (f) a person whose work is concerned with such a vehicle;
10                 (g) all documents in the possession of the Department in
                         relation to a prison or to a custodial service in relation to
                         a prison; and
                   (h) all documents in the possession of a contractor or a
                         subcontractor in relation to --
15                          (i) a prison that is a subject of a contract; or
                           (ii) a custodial service in relation to a prison that is a
                                 subject of a contract.
           (2)   In subsection (1) --
                 "contract", "contractor", "Department" and
20                    "subcontractor" each has the meaning given to that term
                      in the Prisons Act 1981 section 3(1).

     29.         Access to detention centres etc.
           (1)   For the purpose of performing the Inspector's functions under
                 section 19(b), section 21 in relation to a detention centre, or
25               section 22(b), the Inspector or any person authorised by the
                 Inspector, at any time and with any assistants and equipment
                 that the Inspector or authorised person thinks are necessary,
                 may have free and unfettered access to --
                   (a) a detention centre or any part of a detention centre;
30                 (b) a detainee in a detention centre;



                                                                              page 15
     Inspector of Custodial Services Bill 2003
     Part 4          Functions and powers of Inspector
     Division 2      Powers
     s. 30



                  (c)    a person whose work is concerned with a detention
                         centre;
                  (d)    a vehicle used to transport detainees;
                  (e)    a detainee in such a vehicle;
5                  (f)   a person whose work is concerned with such a vehicle;
                         and
                  (g)    all documents in the possession of the Department in
                         relation to a detention centre or to a custodial service in
                         relation to a detention centre.
10         (2)   In subsection (1) --
                 "Department" has the meaning given to that term in the Young
                      Offenders Act 1994 section 3.

     30.         Access to court custody centres, lock-ups etc.
           (1)   For the purpose of performing the Inspector's functions under
15               section 19(c) or (d), section 21 in relation to a court custody
                 centre or lock-up, or section 22(c), the Inspector or any person
                 authorised by the Inspector, at any time and with any assistants
                 and equipment that the Inspector or authorised person thinks are
                 necessary, may have free and unfettered access to --
20                 (a) a court custody centre, a lock-up or any part of such a
                         place;
                   (b) a person in custody in a court custody centre or lock-up;
                   (c) a person whose work is concerned with a court custody
                         centre or lock-up;
25                 (d) a vehicle used for moving persons for whom the CEO is
                         responsible under the Court Security and Custodial
                         Services Act 1999 section 16;
                   (e) a person in custody in such a vehicle;
                    (f) a person whose work is concerned with such a vehicle;
30                 (g) all documents in the possession of the Department in
                         relation to a court custody centre or lock-up or a
                         custodial service (CSCS Act); and

     page 16
                                          Inspector of Custodial Services Bill 2003
                                  Functions and powers of Inspector          Part 4
                                                            Powers      Division 2
                                                                               s. 31



                  (h)   all documents in the possession of a contractor or a
                        subcontractor in relation to --
                           (i) a court custody centre or lock-up that is a subject
                                of a contract; or
5                         (ii) a custodial service (CSCS Act) that is a subject
                                of a contract.
           (2)   In subsection (1) --
                 "contract", "contractor", "Department" and
                      "subcontractor" each has the meaning given to that term
10                    in the Court Security and Custodial Services Act 1999
                      section 3.

     31.         Matters relevant to access powers
           (1)   The Inspector may authorise a person for the purposes of
                 section 28(1), 29(1) or 30(1).
15         (2)   An authorisation must be in writing and may be made subject to
                 such conditions and limitations specified in the authorisation as
                 the Inspector thinks fit.
           (3)   The Inspector may revoke an authorisation if the Inspector
                 considers it appropriate to do so.
20         (4)   Without limiting subsection (3), the Minister may revoke a
                 person's authorisation if the person has adversely affected, or is
                 likely to adversely affect --
                   (a) the good order or the security of a prison, detention
                          centre, court custody centre or lock-up, or vehicle
25                        referred to in section 28(1)(d), 29(1)(d) or 30(1)(d); or
                   (b) the safety of any person at such a place or in such a
                          vehicle or whose work is connected with such a place or
                          vehicle.
           (5)   Nothing in this section or in section 28, 29 or 30 limits any
30               entitlement that a person has, under a written law, to have



                                                                            page 17
     Inspector of Custodial Services Bill 2003
     Part 4          Functions and powers of Inspector
     Division 2      Powers
     s. 32



                 access to a place, vehicle, person or document referred to in
                 those sections.
           (6)   A power under a written law to ban a person from visiting a
                 prison, detention centre, court custody centre or lock-up cannot
5                be exercised in respect of the Inspector or any person who is
                 authorised for the purposes of section 28(1), 29(1) or 30(1).

     32.         Offence to hinder etc. persons exercising access powers
                 A person must not hinder or resist another person who is
                 exercising or attempting to exercise a power under
10               section 28(1), 29(1) or 30(1) if the other person is --
                   (a) the Inspector;
                   (b) a person authorised by the Inspector for the purposes of
                         the relevant provision; or
                   (c) a person assisting the Inspector or a person referred to in
15                       paragraph (b).
                 Penalty: $20 000.




     page 18
                                           Inspector of Custodial Services Bill 2003
                                                          Reporting           Part 5

                                                                                s. 33



                                Part 5 -- Reporting
     33.         Annual reporting
           (1)   The Inspector, as soon as is practicable in each year but not later
                 than 30 September, is to deliver a copy of the report referred to
5                in subsection (2) to each of --
                   (a) the Speaker of the Legislative Assembly and the
                         President of the Legislative Council who are to keep the
                         copies of the report in safe custody; and
                   (b) the Minister, who may prepare a response to the report.
10         (2)   The report, copies of which are to be delivered under
                 subsection (1), is a report on the performance of the Inspector's
                 functions for the period of 12 months ending on the preceding
                 30 June, including --
                   (a) if the Financial Administration and Audit Act 1985
15                       applies at the particular time to the office of the
                         Inspector --
                            (i) the annual report required by section 62 of that
                                 Act as that section applies in respect of the office
                                 under section 38 of this Act; and
20                         (ii) the opinion given by the Auditor General on
                                 financial statements or information submitted for
                                 that period under the Financial Administration
                                 and Audit Act 1985 section 63 as that section
                                 applies in respect of the office under section 38
25                               of this Act;
                   (b) the text of the directions given under section 17(2) and
                         (3) in that period;
                   (c) the text of the reasons prepared under section 17(6)
                         or 18(4);
30                 (d) a list of the places referred to in section 19 that have
                         been inspected since the preceding 30 June, noting the
                         day on which the list was prepared; and


                                                                             page 19
     Inspector of Custodial Services Bill 2003
     Part 5          Reporting

     s. 34



                  (e)   a list of the places referred to in section 19 that are
                        proposed to be inspected in the period up to the next
                        30 June.
           (3)   If the Inspector is not able to cause to be prepared by
5                30 September in a year a report referred to in subsection (2) the
                 Inspector, by that date, is to inform both Houses of Parliament
                 of the inability to do so and the reasons for that inability.

     34.         Inspection reports and reports of occasional inspections and
                 reviews
10         (1)   As soon as is practicable after the completion of an inspection
                 report, but not before the expiry of a reasonable period for
                 submissions to be made under section 37 if applicable, the
                 Inspector is to deliver a copy of the inspection report to each
                 of --
15                 (a) the Speaker of the Legislative Assembly and the
                         President of the Legislative Council who are to keep the
                         copies of the inspection report in safe custody; and
                   (b) the Minister, who may prepare a response to the
                         inspection report.
20         (2)   Subsection (1) also applies to a report --
                  (a) prepared on a matter relating to an inspection under
                        section 21 or a review under section 22; and
                  (b) that, in the Inspector's opinion, should be laid before the
                        Houses of Parliament.

25   35.         Laying before Parliament annual reports, inspection reports
                 and reports of occasional inspections and reviews
           (1)   The Speaker and the President are to lay each document
                 delivered under section 33 or 34 before their respective Houses
                 of Parliament --
30                 (a) not before 30 days after the document is delivered; and



     page 20
                                          Inspector of Custodial Services Bill 2003
                                                         Reporting           Part 5

                                                                               s. 36



                  (b)    as soon as practicable after the expiration of that 30 day
                         period.
           (2)   If, in relation to a document required by subsection (1) to be laid
                 before a House of Parliament --
5                   (a) a House is not sitting on the day when the 30 day period
                          referred to in subsection (1) expires in relation to the
                          document;
                   (b) the document has not been laid before that House; and
                    (c) the Inspector is of the opinion that that House will not
10                        sit during a period after that day that is reasonable
                          having regard to the contents of the document,
                 the Inspector is to transmit a copy of the document to the Clerk
                 of that House.
           (3)   A copy of a document transmitted to the Clerk of a House is to
15               be regarded as having been laid before that House.
           (4)   The laying of a copy of a document that is regarded as having
                 occurred under subsection (3) is to be recorded in the Minutes,
                 or Votes and Proceedings, of the House on the first sitting day
                 of the House after the Clerk received the copy.

20   36.         Chief judicial officers to receive copy of inspection reports,
                 reports of occasional inspections and reviews affecting the
                 court
           (1)   If, under section 34, the Inspector delivers to the Speaker of the
                 Legislative Assembly and the President of the Legislative
25               Council --
                    (a) an inspection report concerning a court custody centre;
                         or




                                                                            page 21
     Inspector of Custodial Services Bill 2003
     Part 5          Reporting

     s. 37



                  (b)    a report prepared by the Inspector on a matter relating to
                         an inspection of a court custody centre under section 21
                         or a review of any court custodial services under
                         section 22(c),
5                the Inspector is to ensure that a copy of the report is delivered as
                 soon as practicable to the chief judicial officer of the relevant
                 court.
           (2)   A chief judicial officer who receives a report under
                 subsection (1) may prepare a response to the report.

10   37.         Submissions in certain cases before completion of reports
           (1)   The Inspector must not, in a document referred to in section 33
                 or 34, disclose information or make a statement setting out an
                 opinion that is, either expressly or impliedly, critical of the
                 Department, a contractor or any other person unless the
15               Inspector has complied with subsection (2) in relation to the
                 matter.
           (2)   If the Inspector proposes to disclose information or make a
                 statement setting out an opinion referred to in subsection (1) the
                 Inspector must, before doing so, afford the following persons
20               the opportunity to make submissions, either orally or in writing,
                 in relation to the matter --
                   (a) if the opinion relates to a Department, the chief
                          executive officer or the CEO as is applicable to the case;
                   (b) if the opinion relates to a contractor, the contractor;
25                 (c) if the opinion relates to another person, the person.
           (3)   In this section --
                 "chief executive officer" has the meaning given to that term in
                     the Prisons Act 1981 section 3(1) or the Young Offenders
                     Act 1994 section 3, as is applicable to the case;
30               "contractor" has the meaning given to that term in the Court
                     Security and Custodial Services Act 1999 section 3 or the
                     Prisons Act 1981 section 3(1), as is applicable to the case;

     page 22
                                     Inspector of Custodial Services Bill 2003
                                                    Reporting           Part 5

                                                                          s. 38



           "Department" has the meaning given to that term in the Court
              Security and Custodial Services Act 1999 section 3, the
              Prisons Act 1981 section 3(1) or the Young Offenders
              Act 1994 section 3, as is applicable to the case.

5    38.   Reporting requirements under Financial Administration and
           Audit Act 1985
           If the Financial Administration and Audit Act 1985 applies at a
           particular time to the office of the Inspector then Part II
           Division 13 of that Act is to be read as if the provisions that are
10         set out in Schedule 1 of this Act are the provisions of that
           Division that apply in respect of the office.




                                                                       page 23
     Inspector of Custodial Services Bill 2003
     Part 6          Independent visitor service

     s. 39



                    Part 6 -- Independent visitor service
     39.         Appointment of independent prison visitors
           (1)   The Minister, after having regard to the advice of the Inspector,
                 may for every prison appoint visitors to be known as
5                independent prison visitors.
           (2)   A person is not to be appointed as an independent prison visitor
                 for a prison where prison services are being provided under a
                 contract if --
                   (a) the person has any financial interest in the contract; or
10                 (b) the person is, or to any extent controls, manages or
                          owns, the contractor or a subcontractor under the
                          contract.
           (3)   An independent prison visitor cannot carry out the duties of a
                 visiting justice.
15         (4)   Appointments under this section are to be for a term of 2 years,
                 but an independent prison visitor may resign at any time by
                 notice in writing delivered to the Minister.
           (5)   In subsections (2) and (3) --
                 "contract", "contractor", "prison services", "subcontractor"
20                   and "visiting justice" each has the meaning given to that
                     term in the Prisons Act 1981 section 3(1).

     40.         Duties of independent prison visitors
           (1)   An independent prison visitor is to --
                  (a)   visit and inspect the prison for which the visitor is
25                      appointed as soon as practicable after being appointed
                        and thereafter at intervals of not more than 3 months;
                  (b)   furnish a report in writing to the Inspector after each
                        visit and inspection made under paragraph (a); and




     page 24
                                          Inspector of Custodial Services Bill 2003
                                         Independent visitor service         Part 6

                                                                              s. 41



                  (c)   make a record of any complaint made to the visitor by or
                        on behalf of a prisoner and report that complaint to the
                        Inspector.
           (2)   An independent prison visitor may, after a visit and inspection
5                made under subsection (1)(a), immediately communicate
                 directly with the Inspector, or the chief executive officer as
                 defined in the Prisons Act 1981, if it seems desirable to make a
                 personal report to the Inspector or the chief executive officer.
           (3)   An independent prison visitor must not interfere with the
10               management of, or discipline at, the prison or give or purport to
                 give any instructions to a person employed at the prison.
     41.         Appointment of independent detention centre visitors
           (1)   The Minister, after having regard to the advice of the Inspector,
                 may for every detention centre appoint visitors to be known as
15               independent detention centre visitors.
           (2)   An independent detention centre visitor cannot carry out the
                 duties of a visiting justice appointed under the Young Offenders
                 Act 1994 section 166.
           (3)   Appointments under this section are to be for a term of 2 years,
20               but an independent detention centre visitor may resign at any
                 time by notice in writing delivered to the Minister.
     42.         Duties of independent detention centre visitors
           (1)   An independent detention centre visitor is to --
                  (a) visit and inspect the detention centre for which the
25                      visitor is appointed as soon as practicable after being
                        appointed and thereafter at intervals of not more than
                        3 months;
                  (b) furnish a report in writing to the Inspector after each
                        visit and inspection made under paragraph (a); and
30                (c) make a record of any complaint made to the visitor by or
                        on behalf of a detainee and report that complaint to the
                        Inspector.

                                                                           page 25
     Inspector of Custodial Services Bill 2003
     Part 6          Independent visitor service

     s. 43



           (2)   An independent detention centre visitor may, after a visit and
                 inspection made under subsection (1)(a), immediately
                 communicate directly with the Inspector, or the chief executive
                 officer as defined in the Young Offenders Act 1994, if it seems
5                desirable to make a personal report to the Inspector or the chief
                 executive officer.
           (3)   An independent detention centre visitor must not interfere with
                 the management of, or discipline at, the detention centre or give
                 or purport to give any instructions to a person employed at the
10               centre.

     43.         Inspector to deal with reports of independent prison visitors
                 and independent detention centre visitors
           (1)   The Inspector --
                  (a) is to review each report received under section 40(1) or
15                      (2) from each independent prison visitor;
                  (b) is to review each report received under section 42(1) or
                        (2) from each independent detention centre visitor;
                  (c) may seek from the chief executive officer, or the
                        contractor for a prison that is a subject of the report,
20                      comments in relation to any matter arising from a report
                        if the Inspector considers it appropriate to do so;
                  (d) is to report to the Minister in relation to the content of,
                        and matters arising from, the reports including the
                        comments, if any, sought under paragraph (c); and
25                (e) may take such action in relation to a matter arising from
                        a report as the Inspector is able to take under this Act.
           (2)   In subsection (1) --
                 "chief executive officer" and "contractor" each has the
                      meaning given to that term in the Prisons Act 1981
30                    section 3(1) or the Young Offenders Act 1994 section 3, as
                      is applicable to the case.



     page 26
                                          Inspector of Custodial Services Bill 2003
                                            Disclosure of information        Part 7

                                                                               s. 44



                     Part 7 -- Disclosure of information
     44.         Disclosure of information permitted for consultation
                 purposes
           (1)   The Inspector may consult the Anti-Corruption Commission,
5                the Director of Public Prosecutions or the Parliamentary
                 Commissioner for Administrative Investigations concerning the
                 performance of any of the Inspector's functions.
           (2)   Information obtained by the Inspector or the Inspector's staff in
                 the course of, or for the purpose of, the performance of a
10               function of the Inspector may be disclosed for the purposes of a
                 consultation under subsection (1).

     45.         Disclosure of certain other information permitted
                 A person who is the Inspector or a member of the Inspector's
                 staff authorised for the purposes of this section by the Inspector
15               may disclose information obtained by the Inspector or the
                 Inspector's staff in the course of, or for the purpose of, the
                 performance of a function of the Inspector if the information --
                   (a) is disclosed to a person who is --
                            (i) a member of the Anti-Corruption Commission;
20                               or
                           (ii) an officer or a seconded officer of the
                                 Anti-Corruption Commission authorised for the
                                 purposes of this subparagraph by the
                                 Anti-Corruption Commission,
25                       and concerns a matter that is relevant to the functions of
                         the Anti-Corruption Commission;
                   (b) is disclosed to a person who is --
                            (i) the Director of Public Prosecutions;
                           (ii) the Deputy Director of Public Prosecutions; or
30                        (iii) a member of the staff of the Director of Public
                                 Prosecutions authorised for the purposes of this


                                                                            page 27
     Inspector of Custodial Services Bill 2003
     Part 7          Disclosure of information

     s. 46



                                 subparagraph by the Director of Public
                                 Prosecutions or the Deputy Director of Public
                                 Prosecutions,
                         and concerns a matter that is relevant to the functions of
5                        either the Anti-Corruption Commission or the Director
                         of Public Prosecutions; or
                   (c)   is disclosed to a person who is --
                            (i) the Parliamentary Commissioner for
                                 Administrative Investigations;
10                         (ii) the Deputy Parliamentary Commissioner for
                                 Administrative Investigations; or
                          (iii) an officer of the Parliamentary Commissioner
                                 authorised for the purposes of this subparagraph
                                 by the Parliamentary Commissioner or the
15                               Deputy Parliamentary Commissioner,
                         and concerns a matter that is relevant to the functions of
                         the Parliamentary Commissioner.

     46.         Disclosure of information permitted if in certain interests to
                 do so
20         (1)   The Inspector may disclose information, or make a statement, to
                 any person or to the public or a section of the public with
                 respect to the performance of a function of the Inspector if, in
                 the Inspector's opinion, it is in the interests of any person, or is
                 otherwise in the public interest, to disclose the information or to
25               make the statement.
           (2)   If the information to be disclosed, or the statement to be made,
                 under subsection (1) contains an opinion that is, either expressly
                 or impliedly, critical of a department or a person, the Inspector
                 is to notify the department or the person before disclosing the
30               information or making the statement if it is practicable to do so.
           (3)   Subsection (2) does not apply if section 37(1) applies to the
                 information or statement and section 37(2) has been complied
                 with in relation to the information or statement.

     page 28
                                          Inspector of Custodial Services Bill 2003
                                            Disclosure of information        Part 7

                                                                              s. 47



     47.         Confidentiality
           (1)   A person must not disclose information that was obtained by the
                 Inspector or the Inspector's staff in the course of, or for the
                 purpose of, performing a function of the Inspector, except --
5                  (a) for the purposes of the performance of a function of the
                        Inspector;
                   (b) for the purposes of any proceedings for perjury or for an
                        offence under this Act;
                   (c) as authorised by section 44, 45 or 46; or
10                 (d) in other circumstances prescribed by the regulations.
                 Penalty: $6 000 and imprisonment for 2 years.
           (2)   Subsection (1) does not apply to the disclosure of statistical or
                 other information that could not reasonably be expected to lead
                 to the identification of any person to whom it relates.

15   48.         Directions to not disclose information
           (1)   The Inspector may in writing direct the person to whom a
                 document is sent by the Inspector not to disclose to any other
                 person any information contained in the document except for
                 the purposes of the performance of a function of the Inspector to
20               which the document relates.
           (2)   A person to whom a direction is given under subsection (1)
                 must comply with the direction.
                 Penalty: $6 000 and imprisonment for 2 years.




                                                                           page 29
     Inspector of Custodial Services Bill 2003
     Part 8          Other offences

     s. 49



                            Part 8 -- Other offences
     49.         Hindering and other offences
           (1)   A person must not, without reasonable excuse, hinder or resist
                 or threaten --
5                  (a) the Inspector or a person assisting the Inspector in the
                         performance or attempted performance of a function of
                         the Inspector; or
                   (b) a person authorised by the Inspector for the purposes of
                         section 28(1), 29(1) or 30(1), or a person assisting such
10                       an authorised person, in the performance or attempted
                         performance of a function of the person under the
                         respective provision.
           (2)   A person must not make a statement that the person knows to be
                 false or misleading to --
15                 (a) the Inspector or a person assisting the Inspector in the
                         performance or attempted performance of a function of
                         the Inspector; or
                   (b) a person authorised by the Inspector for the purposes of
                         section 28(1), 29(1) or 30(1), or a person assisting such
20                       an authorised person, in the performance or attempted
                         performance of a function of the person under the
                         respective provision.
           (3)   A person must not deliberately mislead or attempt to mislead --
                   (a) the Inspector or a person assisting the Inspector in the
25                      performance or attempted performance of a function of
                        the Inspector; or
                  (b) a person authorised by the Inspector for the purposes of
                        section 28(1), 29(1) or 30(1), or a person assisting such
                        an authorised person, in the performance or attempted
30                      performance of a function of the person under the
                        respective provision.
                 Penalty applicable to subsections (1), (2) and (3): $6 000 and
                      imprisonment for 12 months.

     page 30
                                           Inspector of Custodial Services Bill 2003
                                                      Other offences          Part 8

                                                                                 s. 50



     50.         Victimisation
           (1)   A person must not --
                   (a)   prejudice, or threaten to prejudice, the safety or career
                         of;
5                 (b)    intimidate or harass, or threaten to intimidate or harass;
                         or
                   (c)   do any act that is, or is likely to be, to the detriment of,
                 another person because the other person --
                   (d) has provided, is providing or will or may in the future
10                      provide information to the Inspector in the performance
                        of a function of the Inspector; or
                   (e) has performed a function of the Inspector in relation to
                        the other person or is performing, or will or may in the
                        future perform, any such function.
15               Penalty: $8 000 or imprisonment for 2 years.
           (2)   A person who attempts to commit an offence under
                 subsection (1) commits an offence and is liable to the penalty
                 set out in subsection (1).
           (3)   A person who --
20                (a) intends that an offence under subsection (1) be
                        committed; and
                  (b) incites another person to commit the offence,
                 commits an offence and is liable to the penalty set out in
                 subsection (1).




                                                                              page 31
     Inspector of Custodial Services Bill 2003
     Part 9          Miscellaneous

     s. 51



                             Part 9 -- Miscellaneous
     51.         Security and safety considerations
                 When performing a function under this Act a person is to have
                 regard to --
5                  (a) the good order and the security of a prison, detention
                         centre, court custody centre or lock-up, or vehicle
                         referred to in section 28(1)(d), 29(1)(d) or 30(1)(d); and
                   (b) the safety of any person at such a place or in or near
                         such a vehicle or whose work is connected with such a
10                       place or vehicle.

     52.         Protection from liability
           (1)   An action in tort does not lie against a person for anything that
                 the person has done, in good faith, in the performance or
                 purported performance of a function under this Act.
15         (2)   The Crown is also relieved of any liability that it might
                 otherwise have had for another person having done anything as
                 described in subsection (1).
           (3)   The protection given by this section applies even though the
                 thing done as described in subsection (1) may have been
20               capable of being done whether or not this Act had been enacted.
           (4)   In this section, a reference to the doing of anything includes a
                 reference to the omission to do anything.

     53.         Documents sent to or by the Inspector not admissible
                 Any document that is sent to the Inspector or the Inspector's
25               staff or by the Inspector or the Inspector's staff --
                   (a) in the course of, or for the purposes of, the performance
                          of a function of the Inspector; and




     page 32
                                          Inspector of Custodial Services Bill 2003
                                                     Miscellaneous           Part 9

                                                                              s. 54



                  (b)   that was prepared specifically for the purposes of the
                        performance of the function,
                 is privileged and is not admissible in evidence in any
                 proceedings other than proceedings for perjury or for an offence
5                under this Act alleged to have been committed in relation to the
                 performance of the function.

     54.         Protection for proceedings in Cabinet
           (1)   A person cannot be required or authorised under this Act --
                  (a) to furnish any information or answer any question
10                      relating to proceedings of Cabinet or of any committee
                        of Cabinet; or
                  (b) to produce or inspect so much of any document as
                        relates to any such proceedings.
           (2)   For the purposes of this section a certificate issued by the
15               Director General, Department of the Premier and Cabinet, with
                 the approval of the Premier of the State, certifying that any
                 information or question, or any document or part of a document,
                 relates to any such proceedings as are referred to in
                 subsection (1) is conclusive of the fact so certified.

20   55.         Regulations
                 The Governor may make regulations prescribing all matters that
                 are required or permitted by this Act to be prescribed, or are
                 necessary or convenient to be prescribed, for giving effect to
                 this Act.

25   56.         Consequential amendments to other Acts and regulations
           (1)   Schedule 2 has effect.
           (2)   Nothing in this Act prevents any of the Prisons
                 Regulations 1982 from being amended in accordance with the
                 Prisons Act 1981.



                                                                           page 33
Inspector of Custodial Services Bill 2003
Part 9          Miscellaneous

s. 57



57.       Savings and transitional provisions
          Schedule 3 has effect in relation to the repeal, by section 56, of
          the Prisons Act 1981 Part XA and the Court Security and
          Custodial Services Act 1999 Part 5.




page 34
                                              Inspector of Custodial Services Bill 2003



         Financial Administration and Audit Act 1985 application to the       Schedule 1
                                                 office of the Inspector


     Schedule 1 -- Financial Administration and Audit Act 1985
             application to the office of the Inspector
                                                                                    [s. 38]
                    For the purposes of section 38 of this Act, the Financial
5                   Administration and Audit Act 1985 Part II Division 13 is to be read as
                    follows --
     "
               Division 13 -- Reports of accountable officer of Office
                         of Inspector of Custodial Services
10            62.         Accountable officer of Office of Inspector of
                          Custodial Services to report to Parliament
                    (1)   The accountable officer of the Office of the Inspector
                          of Custodial Services shall cause to be prepared, as part
                          of the report referred to in the Inspector of Custodial
15                        Services Act 2003 section 33(2), an annual report
                          containing --
                            (a) financial statements for the relevant financial
                                  year;
                            (b) performance indicators and such other
20                                information as may be directed by the
                                  Treasurer's Instructions; and
                            (c) a report on the operations of the Office during
                                  the relevant financial year.
                    (2)   Unless the Treasurer otherwise approves, the financial
25                        statements referred to in subsection (1)(a) shall be
                          prepared on an accrual accounting basis and shall
                          consist of --
                            (a) a statement of financial transactions of the
                                  Office for the relevant financial year;
30                          (b) a statement of the financial position of the
                                  Office at the end of the relevant financial year;



                                                                                  page 35
     Inspector of Custodial Services Bill 2003



     Schedule 1         Financial Administration and Audit Act 1985 application to the
                        office of the Inspector


                         (c)   proper and adequate notes to the financial
                               statements; and
                        (d)    such other financial statements and information
                               as may be directed by the Treasurer's
5                              Instructions.
               (2a)    The financial statements referred to in subsection (2)
                       shall --
                         (a) present fairly the financial transactions of the
                              Office during the financial year to which they
10                            relate;
                         (b) where a statement of financial position at the
                              end of the financial year is required to be
                              prepared, present fairly the financial position of
                              the Office at the end of the financial year; and
15                       (c) be certified in the manner required by the
                              Treasurer's Instructions.
                 (3)   A report of operations required to be prepared by
                       subsection (1) shall contain all the information that is
                       required by the Treasurer's Instructions.

20         63.         Accountable officer to send accounts, etc. to Auditor
                       General
                       The accountable officer of the Office of the Inspector
                       of Custodial Services shall cause to be submitted to the
                       Auditor General a copy of the financial statements and
25                     the information referred to in section 62(1)(a) and (b).
                                                                                     ".




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                                            Inspector of Custodial Services Bill 2003



                    Consequential amendments to Acts and regulations         Schedule 2



            Schedule 2 -- Consequential amendments to Acts
                           and regulations
                                                                                 [s. 56]

     1.         Anti-Corruption Commission Act 1988 amended
5         (1)   The amendments in this clause are to the Anti-Corruption
                Commission Act 1988*.
                [* Reprinted as at 6 July 2001.]
          (2)   Section 3(1) is amended in the definition of "Inspector of Custodial
                Services" by deleting "Prisons Act 1981;" and inserting instead --
10              "     Inspector of Custodial Services Act 2003; ".
     2.         Constitution Acts Amendment Act 1899 amended
          (1)   The amendments in this clause are to the Constitution Acts
                Amendment Act 1899*.
                [* Reprinted as at 8 June 2001.
15                 For subsequent amendments see Western Australian
                   Legislation Information Tables for 2002, Table 1, p. 75-6 and
                   Acts Nos. 8, 30, 31, 35 and 50 of 2003.]
          (2)   Schedule V Part 1 Division 2 is amended in the item relating to the
                Inspector of Custodial Services by deleting "Prisons Act 1981." and
20              inserting instead --
                "     Inspector of Custodial Services Act 2003.   ".

     3.         Court Security and Custodial Services Act 1999 amended
          (1)   The amendment in this clause is to the Court Security and Custodial
                Services Act 1999*.
25              [* Reprinted as at 13 July 2001.]
          (2)   Part 5 is repealed.




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     Inspector of Custodial Services Bill 2003



     Schedule 2          Consequential amendments to Acts and regulations



     4.         Freedom of Information Act 1992 amended
          (1)   The amendments in this clause are to the Freedom of Information
                Act 1992*.
                [* Reprinted as at 3 March 2000.
5                  For subsequent amendments see Western Australian
                   Legislation Information Tables for 2002, Table 1, p. 151 and
                   Acts Nos. 28 and 29 of 2003.]
          (2)   Schedule 1 clause 14(1) is amended by deleting paragraph (d) and
                inserting the following paragraph instead --
10                   "
                          (d)   section 47 of the Inspector of Custodial Services
                                Act 2003.
                                                                                     ".
          (3)   Schedule 1 clause 14(2) is amended by inserting after "1971" --
15              "   or section 48 of the Inspector of Custodial Services Act 2003   ".
          (4)   Schedule 2 is amended by inserting after the item relating to the
                Information Commissioner the following item --
                "
                    The Inspector of Custodial Services.
20                                                                                   ".
     5.         Parliamentary Commissioner Act 1971 amended
          (1)   The amendments in this clause are to the Parliamentary
                Commissioner Act 1971*.
                [* Reprinted as at 16 March 2001 and Act No. 35 of 2003.]
25        (2)   Section 4 is amended in the definition of "Inspector of Custodial
                Services" by deleting "Prisons Act 1981;" and inserting instead --
                "   Inspector of Custodial Services Act 2003; ".




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                                                Inspector of Custodial Services Bill 2003



                      Consequential amendments to Acts and regulations         Schedule 2



          (3)     Schedule 1 is amended as follows:
                    (a) after the item relating to the Western Australian Independent
                         Gas Pipelines Access Regulator the following item is
                         inserted --
5                 "
                            The Inspector of Custodial Services under the Inspector of
                            Custodial Services Act 2003.
                                                                                          ";
                      (b)    by deleting "The Inspector of Custodial Services under the
10                           Prisons Act 1981.".

     6.           Prisons Act 1981 amended and savings provision
          (1)     The amendments in this clause are to the Prisons Act 1981*.
                  [* Reprinted as at 22 December 2000.
                     For subsequent amendments see Western Australian
15                   Legislation Information Tables for 2002, Table 1, p. 311 and
                     Acts Nos. 29 and 50 of 2003.]
          (2)     Section 3(1) is amended by deleting the definitions of "inspection
                  report" and "Inspector" and inserting the following definition
                  instead --
20                "
                            "independent prison visitor" means a person who is
                                appointed to be an independent prison visitor
                                under section 39 of the Inspector of Custodial
                                Services Act 2003;
25                                                                                        ".
          (3)     Section 3(1) is amended by deleting the definition of "prison visitor".
          (4)     Section 54 is repealed and the following section is inserted instead --
     "
            54.             Appointment of visiting justices
30                (1)       The Minister may, for every prison, appoint visitors to
                            be known as visiting justices.



                                                                                   page 39
     Inspector of Custodial Services Bill 2003



     Schedule 2         Consequential amendments to Acts and regulations



               (2)     A visiting justice shall not carry out the duties of an
                       independent prison visitor.
               (3)     Visiting justices shall be appointed from persons who
                       are magistrates or justices of the peace.
5              (4)     Appointments under this section shall be for a term of
                       2 years, but a visiting justice may resign at any time by
                       notice in writing delivered to the Minister.
                                                                                      ".
        (5)    A person who, immediately before the commencement of this Act,
10             was a person who had been appointed by the Governor, under the
               Prisons Act 1981 section 54, to be a visiting justice is to be regarded,
               on and from the commencement, as a person who is appointed by the
               Minister, under the Prisons Act 1981 section 54, as a visiting justice
               on the same terms and conditions as applied to the person's
15             appointment by the Governor.
        (6)    Section 55 is repealed.
        (7)    Section 57 is amended by deleting "A" and inserting instead --
               "     An independent ".
        (8)    Section 58 is amended by deleting "section 55, 56 or 57." and
20             inserting instead --
               "
                       section 56 or 57 of this Act or for the purpose of
                       performing a function under section 19(a), 21, 22(a)
                       or 40 of the Inspector of Custodial Services Act 2003.
25                                                                                    ".
        (9)    Section 64 is amended by inserting after "Subject" --
               "
                       to section 28 of the Inspector of Custodial Services
                       Act 2003 and
30                                                                                    ".
       (10)    Section 66(1) is amended by deleting "Act," and inserting instead --
                   "   Act or any provision of another written law, ".

     page 40
                                              Inspector of Custodial Services Bill 2003



                     Consequential amendments to Acts and regulations        Schedule 2



          (11)   Section 67(1) is amended after paragraph (c) by deleting "or" and
                 inserting --
                        "
                            (ca)   the Inspector of Custodial Services; or
5                                                                                      ".
          (12)   Part XA is repealed.
          (13)   Section 110(1)(q) is amended by deleting "prison visitors and their
                 powers and duties;" and inserting instead --
                 "
10                                 independent prison visitors, subject to Part 6 of
                                   the Inspector of Custodial Services Act 2003;
                                                                                       ".
     7.          Young Offenders Act 1994 amended and savings provision
           (1)   The amendments in this clause are to the Young Offenders Act 1994*.
15               [* Reprinted as at 8 December 2000.
                    For subsequent amendments see Western Australian
                    Legislation Information Tables for 2002, Table 1, p. 442 and
                    Act No. 50 of 2003.]
           (2)   Section 166 is repealed and the following section is inserted
20               instead --
     "
             166.        Appointment of visiting justices
                 (1)     The Minister may, for every detention centre, appoint
                         visitors to be known as visiting justices.
25               (2)     A visiting justice cannot carry out the duties of an
                         independent detention centre visitor appointed under
                         section 41 of the Inspector of Custodial Services
                         Act 2003.
                 (3)     Visiting justices are to be appointed from persons who
30                       are magistrates or members of the Children's Court.


                                                                                 page 41
     Inspector of Custodial Services Bill 2003



     Schedule 2              Consequential amendments to Acts and regulations



                  (4)    Appointments under this section are to be for a term of
                         2 years, but a visiting justice may resign at any time by
                         notice in writing delivered to the Minister.
                                                                                        ".
5         (3)     A person who, immediately before the commencement of this Act,
                  was a person who had been appointed by the Governor, under the
                  Young Offenders Act 1994 section 166, to be a visiting justice is to be
                  regarded, on and from the commencement, as a person who is
                  appointed by the Minister, under the Young Offenders Act 1994
10                section 166, as a visiting justice on the same terms and conditions as
                  applied to the person's appointment by the Governor.
          (4)     Section 167 is repealed.
          (5)     Section 169(a) is deleted and the following paragraph is inserted
                  instead --
15                      "
                             (a)   an independent detention centre visitor
                                   appointed under section 41 of the Inspector of
                                   Custodial Services Act 2003;
                                                                                        ".
20   8.           Prisons Regulations 1982 amended
          (1)     The amendments in this clause are to the Prisons Regulations 1982*.
                  [* Reprinted as at 9 March 2001.
                     For amendments to 28 August 2003 see Western Australian
                     Legislation Information Tables for 2002, Table 4, p. 297 and
25                   Gazette 30 June 2003.]
          (2)     Part X is repealed and the following Part is inserted instead --
     "
                        Part X -- Independent prison visitors
            76.             Visits by independent prison visitors
30                       Where an independent prison visitor has given notice
                         of his or her intention to visit a prison the


     page 42
                                               Inspector of Custodial Services Bill 2003



                      Consequential amendments to Acts and regulations      Schedule 2



                          superintendent shall cause a notice of the intended visit
                          to be published within the prison.

            77.           Interviews by independent prison visitors
                  (1)     The superintendent shall bring to the attention of the
5                         independent prison visitor the names of any prisoner or
                          officer who has requested to see the independent prison
                          visitor and shall make the necessary arrangements to
                          enable the independent prison visitor to interview such
                          prisoner or officer at the prison.
10                (2)     The independent prison visitor may interview an
                          officer in private.
                  (3)     Subject to any direction to the contrary made by the
                          superintendent in the interests of security, the
                          independent prison visitor may interview a prisoner
15                        within the view but not the hearing of an officer.
                                                                                      ".
          (3)     Regulation 87 is repealed.

     9.           Public Sector Management (General) Regulations 1994 amended
          (1)     The amendments in this clause are to the Public Sector Management
20                (General) Regulations 1994*.
                  [* Reprint 2 as at 25 July 2003.]
          (2)     Regulation 4A(2) is amended by deleting "referred to in section 109A
                  of the Prisons Act 1981" and inserting instead --
                  "     under the Inspector of Custodial Services Act 2003 ".




                                                                                page 43
     Inspector of Custodial Services Bill 2003



     Schedule 2         Consequential amendments to Acts and regulations



     10.         Salaries and Allowances Regulations 1975 amended
           (1)   The amendments in this clause are to the Salaries and Allowances
                 Regulations 1975*.
                 [* Reprinted as at 26 November 1999.
5                   For amendments to 28 August 2003 see Western Australian
                    Legislation Information Tables for 2002, Table 4, p. 340 and
                    Gazette 15 August 2003.]
           (2)   The Schedule to regulation 3 is amended by deleting the item relating
                 to the Prisons Act 1981 and inserting after the item relating to the
10               Health Services (Conciliation and Review) Act 1995 the following
                 item --
                 "
                       Inspector of Custodial          Inspector of Custodial
                       Services Act 2003               Services
                                                                                    ".
     11.         State Superannuation Regulations 2001 amended
15         (1)   The amendments in this clause are to the State Superannuation
                 Regulations 2001*.
                 [* Published in Gazette 16 February 2001.
                    For amendments to 28 August 2003 see Western Australian
                    Legislation Information Tables for 2002, Table 4, p. 362 and
20                  Gazette 13 June 2003, 15 August 2003 and 26 August 2003.]
           (2)   Schedule 1 Division 1 item 18 is amended by deleting "Prisons
                 Act 1981" and inserting instead --
                 "   Inspector of Custodial Services Act 2003   ".




     page 44
                                           Inspector of Custodial Services Bill 2003



                                             Savings and transitional       Schedule 3



                    Schedule 3 -- Savings and transitional
                                                                                   [s. 57]

     1.         Definitions
                In this Schedule --
5               "commencement" means the day on which this Act comes into
                    operation;
                "repealed provisions" means Part XA of the Prisons Act 1981
                    repealed by section 56.

     2.         Interpretation Act 1984 applies
10              This Schedule does not limit the operation of the Interpretation
                Act 1984.

     3.         Persons holding offices under, or employed etc. for purposes of
                repealed provisions
          (1)   A person who was --
15                (a) appointed as Inspector or acting Inspector; or
                  (b)   appointed, employed or engaged as a member of the
                        Inspector's staff,
                and whose appointment to, or employment or engagement in, that
                office or position was in effect immediately before commencement is
20              to be regarded, on and after commencement, as having been
                appointed, employed or engaged, as the case requires, for the
                purposes of this Act, on the same terms and conditions, including as
                to remuneration, as those which applied to the person immediately
                before commencement.
25        (2)   A person to whom subclause (1) applies retains all existing and
                accruing rights and benefits as if the holding of the office, or the
                appointment, employment or engagement, for the purposes of this
                Act, were a continuation of the person's holding of the office, or the
                appointment, employment or engagement, for the purposes of the
30              repealed provisions, immediately before commencement.




                                                                               page 45
     Inspector of Custodial Services Bill 2003



     Schedule 3         Savings and transitional



     4.         Reporting
          (1)   Part 5 of this Act does not apply in respect of a financial year that has
                ended before this Act comes into operation; and the repealed
                provisions continue to apply in respect of such a financial year as if
5               the repealed provisions had not been repealed.
          (2)   Part 5 of this Act applies with respect to the period from 1 July in a
                financial year to a day that --
                  (a)   occurs in the same financial year; and
                  (b)   immediately precedes commencement,
10              as if this Act were in effect when the matters to be reported on
                occurred.

     5.         Calculating maximum period between inspections for first
                inspection of a place under this Act
          (1)   The 3 year period referred to in section 19 in relation to an inspection
15              of a prison is to be calculated in the first instance from the time of the
                last inspection of that prison under the repealed provisions.
          (2)   The 3 year period referred to in section 19 in relation to an inspection
                of a court custody centre or a lock-up is to be calculated in the first
                instance from the last inspection of that place under Part 5 of the
20              Court Security and Custodial Services Act 1999 repealed by
                section 56.

     6.         Independent prison visitors and independent detention centre
                visitors
          (1)   A person who, immediately before commencement, was a person who
25              had been appointed or was deemed to have been appointed to be a
                prison visitor under the Prisons Act 1981 section 54 is to be regarded,
                on and from commencement, as a person who is appointed to be an
                independent prison visitor under section 39 of this Act on the same
                terms and conditions as applied to the person's appointment under the
30              Prisons Act 1981 section 54.
          (2)   A person who, immediately before commencement, was a person who
                had been appointed to be a detention centre visitor under the Young
                Offenders Act 1994 section 166 is to be regarded, on and from
                commencement, as a person who is appointed to be an independent

     page 46
                           Inspector of Custodial Services Bill 2003



                             Savings and transitional      Schedule 3



detention centre visitor under section 41 of this Act on the same terms
and conditions as applied to the person's appointment under the
Young Offenders Act 1994 section 166.




                                                               page 47
Inspector of Custodial Services Bill 2003



Defined Terms




                                            Defined Terms
            [This is a list of terms defined and the provisions where they are defined.
                                   The list is not part of the law.]
      Defined Term                                                                                           Provision(s)
      CEO................................................................................................................. 3
      chief executive officer ..................................................................... 37(3), 43(2)
      chief judicial officer of a court.......................................................................... 3
      commencement ................................................................................Sch. 3, cl. 1
      contract ................................................................................. 28(2), 30(2), 39(5)
      contractor.......................................................... 28(2), 30(2), 37(3), 39(5), 43(2)
      court custodial services..................................................................................... 3
      court custody centre.......................................................................................... 3
      court premises .................................................................................................. 3
      custodial service ............................................................................................... 3
      custodial service (CSCS Act)............................................................................ 3
      Department ................................................................. 28(2), 29(2), 30(2), 37(3)
      detainee............................................................................................................ 3
      detention centre................................................................................................ 3
      document ...................................................................................................18(5)
      independent detention centre visitor.................................................................. 3
      independent prison visitor................................................................................. 3
      information ................................................................................................18(5)
      inspection report............................................................................................... 3
      Inspector .......................................................................................................... 3
      lock-up............................................................................................................. 3
      misbehaviour............................................................................................... 9(2)
      person in custody.............................................................................................. 3
      prison............................................................................................................... 3
      prison services............................................................................................39(5)
      prisoner............................................................................................................ 3
      public service officer ........................................................................................ 3
      repealed provisions...........................................................................Sch. 3, cl. 1
      staff.................................................................................................................. 3
      subcontractor......................................................................... 28(2), 30(2), 39(5)
      visiting justice ............................................................................................39(5)




 


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