Proposed Changes to The Correctional Services Act 1982

27 May 2019

The Public Service Association (PSA) has received correspondence from the Minister for Police, Emergency Services and Correctional Services inviting comment on a Bill to introduce changes to the Correctional Services Act 1982.

The PSA is seeking feedback on the proposed changes through your worksite representatives.

The changes are in four main parts. A summary of the amendments appears below.

1. Revised arrangements for prisoners, probationers and parolees.

Abolition of Inspectors.

Inspectors are to be replaced by “Official Visitors’ and the Bill proposes more prescriptive provisions for the role and obligations of the visitor and the rights of prisoners, their relatives and support people to request to see a visitor. It does not appear that these changes will have any significant impact for members.

Change to clause on imprisonment in police cells.

The Act currently states that a person cannot be detained in a police prison if they are sentenced to a term exceeding 15 days. The Bill deletes this provision. This raises issues for prisoner safety that are of concern.

Work by Remand Prisoners.

The Bill involves changes that will require remand prisoners to work.

Prisoner mail and monitoring of prisoner communications.

The Bill makes minor changes to the sections of the Act about prisoner mail and processes for monitoring prisoner communications. The change of most significance in this section is that a party to a communication with a prisoner (other than a specified few) does not have to be informed that their communication may be monitored or recorded.

Changes to the length of time a prisoner may be kept apart from other prisoners.

The CE will have greater powers to extend the length of time a prisoner may be kept apart from other prisoners.

Use of Restraints.

A new clause 36A is to be added prescribing circumstances in which restraints may be used on prisoners.

Criminal Offences and offences by others.

A new division proposed in the Bill describes a series of criminal offences and associated penalties. These include disrupting security or order and possession of certain items when imprisoned.

Clause 51 of the current Act would also be varied to better prescribe offences by persons other than prisoners and to define a penalty for possessing controlled substances within a correctional institution buffer zone.

2. Changes to the operation of Parole Board and processes for parole.
There are a series of changes to the arrangements for the operation of the Parole Board, covering allowances and expenses, proceedings and reporting.

There are also changes about release of certain prisoners sentenced for less than five years and exemptions to automatic release if these prisoners have a conviction for a serious drug offence.

There are also proposals to change conditions for release on parole including the option of requiring electronic monitoring devices, revisions to processes for accepting parole conditions and a detailed new clause on suspension of release for certain breaches of parole.

Changes to clause 77A would also change the classes of prisoner where a decision to release them on parole can be reviewed.

3. Revised arrangements for Prison Officers and other employees of Correctional Services.

The most controversial changes proposed in the Bill are about increasing the investigative powers of the Chief Executive and the right of the Commissioner of Police to object to a person’s appointment as an officer or employee of the department. There is also a consequential amendment proposed to the Public Sector Act 2009 that would mean there is no right of review if an objection by the Police Commissioner is upheld by the Chief Executive.

The proposed new clause 77Q is as follows:

77Q - Investigative powers of CE

  1.  The CE may, for the purposes of the review or investigation of any matter relevant to the CE's powers, functions, duties or responsibilities under this or any other Act-

   (a) by notice in writing-

(i) require an officer or employee of the Department to appear at a specified time and place; or

(ii) require an officer or employee of the Department to produce a specified document or object that is relevant to the subject matter of the review or investigation; and

(b) require an officer or employee of the Department to answer truthfully questions put by the CE that are relevant to the subject matter of the review or investigation.

(2) An officer or employee of the Department who fails to comply with a requirement under this section or hinders the exercise of powers under this section is guilty of misconduct for the purposes of the Public Sector Act 2009 and any other Act.

(3) A person is not obliged to answer a question or to produce a document or object (other than a document or object of the Government) under this section if to do so would tend to incriminate the person of an offence.

The PSA is concerned about this section of the Bill. It undermines the fundamental right of an employee to natural justice and procedural fairness by specifying that a failure to comply with a notice from the CE under this section makes an employee immediately guilty of misconduct.

77R-Commissioner of Police may object to certain applications for engagement or appointment
(1) The CE may refer an application of a person to whom this subsection applies to the Commissioner of Police.

(2) The Commissioner of Police may object to an application referred to the Commissioner under subsection (1) if the Commissioner considers that it would not be in the public interest for the applicant to be appointed as an officer or employee of the Department or appointed to a designated position (as the case requires).

(3) If the Commissioner of Police objects to an application referred to the Commissioner under subsection (1), the CE may refuse the application.

(4) The CE is not required to provide to the applicant any grounds or reasons for refusing an application under this section.

(5) Subsection (1) applies to-

(a) a person applying for appointment as an officer or employee of the Department; and

(b) an officer or employee of the Department applying for appointment to a designated position.

(6) In this section-

designated position means an appointment to a position in the Department designated by the CE for the purposes of this section.

To remove review rights under the Public Sector Act 2009 when an applicant for a designated position is not provided with any reason for the refusal of their application undermines basic employment principles. The PSA opposes this proposed change.

The PSA also anticipates that the new part of the Act relating to Drug and Alcohol Testing for employees that has passed both Houses but not been proclaimed may also be enacted with any changes arising from this Bill.

4. A series of miscellaneous changes to various sections of the Act.
A series of other more minor changes are also proposed. These relate to confidentiality of information, including bio-metric data and the operation of unmanned aircraft or drones within 100 metres of a facility.

The full text of the draft Bill can be accessed here.

Worksite representatives will discuss the contents of the Bill at forthcoming meetings across the department, including prisons and community corrections. Please provide your worksite reps with any comments you have as soon as possible,