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Corrections (Custody) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for the commencement of the Bill.
PART 2--AMENDMENTS RELATING TO CUSTODY
Clause 3 inserts definitions into the Corrections Act 1986 ("the Act").
These definitions include a new definition of "prisoner", being
anyone in the Secretary's custody under Part 1A.
Clause 4 Repeals section 4 of the Act which identified those individuals
deemed to be in the Secretary's custody. This concept is clarified
by the Bill and dealt with in clause 5.
Clause 5 Inserts a new part, Part 1A into the Act concerning legal custody
as follows--
Section 6 defines an "order of imprisonment".
Section 6A identifies when a person enters the "legal custody" of
the Secretary. This will occur when 2 elements are satisfied--
(i) an order of imprisonment has been made; and
(ii) either a person acting with the Secretary's authority accepts
physical custody of the offender; or a person is received
into prison.
Legal custody will continue until it ceases under section 6B.
Section 6B outlines when a person ceases to be in the Secretary's
legal custody.
541193 BILL LA CIRCULATION 4/5/2001
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Paragraph (a) concerns the expiration of the sentence of
imprisonment. It excludes, however, cases where a person is in
custody for some other reason. Other reasons would include
cases where the person is remanded in custody for other
offences.
Paragraph (c) specifies that the Secretary's custody transfers
when legal custody is transferred to another person. Transfers to
other persons include transfers under the Mental Health Act, the
Intellectually Disablexd Persons Services Act, the Children and
Young Persons Act, and the Crimes (Mental Impairment and
Unfitness to be Tried) Act. These are noted in the new
Division 2 of Part 8.
Section 6C states that individuals on parole, serving the
community component of their Combined Custody and
Treatment Orders, undergoing an Intensive Correction Order, or
serving a wholly or partially suspended sentence of
imprisonment are not in the Secretary's legal custody.
Section 6D defines when a person is in the legal custody of the
Chief Commissioner of Police. This provision mirrors
section 6A concerning the Secretary's custody, but applies to
police custody. However, it also covers cases where a Court
specifically orders that a person be held in police custody and
cases where there is other lawful authority to detain a person in a
police gaol.
Section 6E mirrors section 6B, but applies to police custody.
Section 6F clarifies the status of persons in the legal custody of
the Secretary or the Chief Commissioner of Police who are
brought before a Court or Tribunal. It makes it clear that the
power or authority of the Court or Tribunal is not affected by this
legal custody.
Clause 6 repeals section 9AA(2) thereby removing the definition of
"transport". The Bill adds to section 3 of the Act a global
definition of "transport" in the same terms.
Clause 7 enables the Secretary to authorise a contractor or other such
person to exercise the functions of the new category of officer,
being the escort officer.
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Clause 8 replaces the current functions and powers of those authorised to
exercise transport functions by the Chief Commissioner of Police
with the very similar functions and powers to those that have
been granted to "escort officers". This is to ensure consistency in
the functions and powers of all those carrying out the same role
whether these tasks are carried out pursuant to the Chief
Commissioner of Police's legal custody, or that of the Secretary.
However, it is noted that the powers referred to in this section do
not include the power to "supervise" as section 9A(1B)(a) relates
to the power to transport only. It is not intended to extend the
scope of the Chief Commissioner of Police's power to make
authorisations.
Sub-clause (2) inserts into this provision the conditions on which
an instrument of restraint may be applied. These conditions are
similar to the existing conditions in the Corrections Regulations
that relate to the application of instruments of restraint by prison
officers during transport. Elevating into the legislation these
requirements concerning the manner in which instruments of
restraint may be used will provide clarity and consistency for all
officers and persons detained.
Clause 9 inserts "escort officer" into section 9C of the Act so that where a
person is authorised to exercise the powers and functions of an
escort officer, he or she is taken to be an escort officer. This is
so even though the authorised person does not hold such a
position and is not subject to the Public Sector Management
and Employment Act 1998.
Clause 10 repeals the definition of transport in section 9CAA of the Act,
that definition having been replaced with a global definition in
section 3 of the Act.
Clause 11 replaces a reference to section 11(7) in section 9CB of the Act
with a reference to Part 1A, to reflect the fact that Part 1A now
prescribes the circumstances in which a person is in the legal
custody of the Chief Commissioner of Police. This was
previously dealt with in section 11(7).
Clause 12 deletes sections 11(7), (8) and (9) of the Act. The cessation of
the Chief Commissioner of Police's custody and the requirements
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for completion of the transfer of custody under the Act, which
are referred to in sub-section (9), are dealt with in Part 1A.
Clause 13 adds "escort officers" to the list of individuals whom the
Secretary may employ for the purposes of the Act.
Clause 14 includes "escort officer" in the list of officers whose assigned
powers or functions the Secretary may exercise. Where the
Secretary exercises these functions or powers, this prevails over
their exercise by an escort officer.
Clause 15 inserts a new Division into the Act, Division 1A of Part 8,
concerning escort officers as follows--
Section 55A empowers the Secretary to direct an escort officer to
transport or supervise a person. Supervise is defined by these
amendments in section 3 of the Act. It also compels the escort
officer to comply.
Section 55B confirms that where a person surrenders himself or
herself into the custody of the Court in answer to his or her bail,
the Court may direct the escort officer to supervise that person.
Additionally, an escort officer must comply with all lawful
directions of the Court when supervising that person or a person
who has surrendered himself or herself to the Court in answer to
his or her bail.
Section 55C sets out the functions and powers of an escort
officer in relation to the person that he or she is supervising or
transporting. Sub-section (2) includes the power of search and
seizure. The powers also include the power to use instruments of
restraint. These powers mirror those set out in the regulations.
Section 55D limits the application of instruments of restraint
to those that have been authorised by the Secretary.
This requirement mirrors the requirement in the regulations.
Section 55E empowers an escort officer to use reasonable force
where necessary. Where force is used in accordance with this
section, the escort officer will not be personally liable. This does
not, however, affect the liability of the Crown. Nor does it affect
the liability of the escort officer or the Crown where more than
reasonable force is applied.
Section 55F identifies the matters that the escort officer must
report to the Secretary. Escapes or suspected escapes must be
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reported immediately. Other matters specified must be reported
without delay.
Section 55G Where an escort officer is directed to supervise a
person in Court who has surrendered himself or herself in answer
to bail, or has been ordered by the Court to be detained on Court
premises, the escort officer has the functions and powers that he
or she would have were he or she transporting the individual.
However, where the escort officer is directed to exercise a power
by the Court, he or she is not required to form an independent
belief on reasonable grounds before exercising the power.
Section 55H identifies how items that are seized during transport
or supervision are to be dealt with. Where items are to be
provided to the Secretary, the Secretary must deal with or
dispose of them in accordance with the regulations. Where items
are seized by the escort officer whilst supervising a person at
Court, they must be provided to the Court to be dealt with or
disposed of as it considers appropriate.
Section 55I A member of the police force, may at the request of
the Secretary transport a person, either in place of, or in
conjunction with, the escort officer. For this purpose, the
member of the police force can do anything that the escort officer
can do. Where the police officer transports the person in place of
the escort officer, the person will be in the legal custody of the
Chief Commissioner of Police. Where the police officer assists
an escort officer, the person is deemed to be in the legal custody
of the Secretary while being transported.
Section 55J The escort officer has the power to execute a warrant
to imprison as if he or she was a prison officer. Currently these
warrants can be directed to, and executed by, prison officers.
Given that a new category of officer is being established to
exercise this function, it is necessary to ensure that the escort
officer can act upon the warrant to imprison and therefore can
take physical custody of the individual who is the subject of the
warrant.
Clause 16 replaces Division 2 concerning the transfer of prisoners.
It streamlines the transfer powers previously referred to.
Section 56 concerns the transfers from one prison to another.
While the Secretary's legal custody remains unchanged, and
arguably the transfer would be considered within the Secretary's
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power, this provision provides the express power for the
avoidance of doubt. It also imposes the legislative requirement
that there be an instrument of transfer.
Section 56AA enables the transfer of prisoners to police gaols,
and individuals detained in police gaols to prison.
Where a person requires treatment in an approved mental health
institution, or a residential institution or service, the transfers are
authorised under other legislation. This legislation is referred to
in 56AB. The purpose of 56AB is to ensure that it is clear that
the legal custody of the Secretary is transferred to another entity
when a person is transferred under the Mental Health Act, or the
Intellectually Disabled Persons Services Act. Where those Acts
identify the person to whom legal custody is transferred, then
that remains the case. Where those Acts do not identify the
person to whom legal custody is transferred, it will be transferred
to the chief executive of the relevant institution.
Where a person requires treatment in one of the institutions listed
in sections 56(1)(c)-(f) (section 56 will be repealed by the Bill),
the person is granted a custodial community permit under section
57 of the Act and authorised to be absent from prison for a
certain period. The legal custody remains with the Secretary.
The Secretary makes appropriate security arrangements and
continues to be responsible for the individual.
Clause 17 sub-clause (1) ensures that where custodial community permits
are granted for purposes relating to health or physical fitness
under section 57, such permits are not restricted to a 3 day
period.
Sub-clause (2) makes section 57(6) subject to the new Part 1A of
the Act so that where a person ceases to be in the legal custody of
the Secretary because of behaviour that constitutes an offence
under section 479C(2) or (3) of the Crimes Act, the person will
not be deemed to be in custody under section 57(6).
Sub-section (3) enables a prisoner who is not in prison, but taken
into the Secretary's custody outside prison, to be placed on a
custodial community permit without first being returned to
prison. This provision could be used where a person is accepted
into the legal custody of the Secretary outside prison with a view
to being conveyed to prison, but the person then needs hospital
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treatment. The prisoner could be taken directly to hospital at this
stage.
Clause 18 ensures that the interstate leave of absence provisions are
consistent with the amendments made by Part 1A. It is not
intended to alter in any way the substantial correspondence of
this provision to the laws of another State.
Clause 19 ensures that where a prisoner has escaped from custody he or she
may be arrested and delivered to a prison or police gaol as soon
as possible. There is no requirement that the person be taken to
Court.
Clause 20 inserts 2 provisions into the Act to make it clear that sections
9CB and 55E of the Act do intend to alter or vary section 85 of
the Constitution Act 1975. Those sections intend to alter or
vary section 85 because they contain provisions that seek to limit
the jurisdiction of the Supreme Court.
.Clause 21 inserts "escort officer" into section 112(1)(k). Accordingly, the
Governor in Council may make regulations in relation to the use
of firearms by escort officers. This is necessary to ensure that
the powers and functions previously exercised by prison officers
during transport will be available to those exercising the
functions and powers of escort officers.
Clause 22 inserts transitional provisions into the Bill. These provisions
ensure that a person in the Secretary's custody under section 4
before this Bill becomes operative, will be deemed to be in the
Secretary's legal custody under Part 1A immediately upon its
commencement. Thereafter, the provisions of Part 1A will
apply. Sub-clause (2) mirrors sub-clause (1) with respect to a
person in the Chief Commissioner of Police's custody.
PART 3--AMENDMENTS TO THE CORRECTIONS ACT 1986
Clause 23 inserts definitions into the Act.
Clause 24 extends the Secretary's power to delegate his or her powers under
regulations made under any other Act. This is to overcome a
previous omission in the current provision, which only permits
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delegation of the Secretary's powers under regulations made
under the Act.
Clause 25 provides the Commissioner (appointed under section 8A of the
Act) with an automatic right of access to prisons, which is
consistent with the responsibilities of the Commissioner under
the Act.
Clause 26 inserts "disciplinary officer" into section 9C of the Act.
Accordingly, subject to sub-section (2) of that section,
individuals who are authorised to exercise the functions and
powers of disciplinary officers under the Act will be taken to be
disciplinary officers.
Clause 27 provides Governors with all the functions and powers of prison
officers and escort officers and ensures that the exercise of those
functions and powers by the Governor prevail over the exercise
of those functions and powers by prison officers. This corrects
an anomaly in the Act.
Clause 28 sub-clause (1) adds a person authorised under section 9A to
section 30(1)(g), thus correcting an inconsistency in the Act.
Sub-clause (2) provides further clarity to the meaning of
information relating to the personal affairs of a prisoner. This is
consistent with "information relating to the personal affairs of a
person" under section 33 of the Freedom of Information Act.
It is not intended by sub-clause (2) to limit in any way the scope
of the reference to information relating to the personal affairs of
a prisoner.
Clause 29 provides a further exception to the secrecy provisions in
section 30 of the Act. This provision will enable the Secretary to
provide primary victims (defined in the same terms as section 7
of the Victims of Crime Assistance Act 1996) to obtain the
information specified about the person who is serving a sentence
of imprisonment for an offence committed against them.
However, this information must not be disclosed if to do so
would endanger the security of any prison or the safe custody
and welfare of the prisoner or any other prisoner or the safety or
welfare of any other person.
Clause 30 clarifies the previous section 42 of the Act.
Clause 31 clarifies the previous section 45 of the Act.
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Clause 32 has 2 effects. Paragraph (a) extends the categories of individuals
to whom prisoners have the right to make complaints concerning
prison management.
Paragraph (b) extends the categories of individuals to and from
whom letters may be sent and received without being opened by
prison staff, subject to the right to open such letters where they
pose an immediate danger to any person.
Clause 33 inserts sections 47A-47D in the Act to establish a comprehensive
scheme for dealing with prisoners' mail. There are 4 categories
into which mail may be placed, each of which has different
requirements as to confidentiality--
(a) All letters containing unauthorised articles or substances
that could pose an immediate danger to any person may be
disposed of by the Governor as he or she thinks appropriate
(section 47A).
(b) Under section 47B, correspondence to or from the Health
Services Commissioner, Human Rights and Equal
Opportunity Commissioner or a legal practitioner which is
suspected of containing an unauthorised article or
substance, may be dealt with as follows--
· The letter may be held and the relevant sender and
intended recipient must be notified.
· The letter may be opened in the parties' presence or as
they direct. However, if they do not so direct within 7
days of notification, the Governor may require the
prisoner to open the letter. If the prisoner refuses to
open the letter, then the Governor may open it.
(c) The Governor may require a prisoner to open
correspondence to or from the Minister, a member of
Parliament, the Secretary, the Commissioner or an official
visitor for inspection. If the prisoner refuses to open the
letter, then the Governor may open it. The Governor
cannot read or censor these letters.
(d) All other letters may be opened and read for the purpose of
determining whether they are a threat to the security of the
prison, the safe custody and welfare of a prisoner or
prisoners, or to the safety of the community. The purposes
ascribed to the power in this section do not in any way limit
the exercise of that power.
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Section 47D sets out the reasons for which letters may be
stopped or censored contrary to section 47(1)(n).
Section 47E requires the establishment and maintenance of a
register containing details of the manner in which letters have
been dealt with under this Act.
Clause 34 Sub-clause (1) imposes reporting requirements in relation to
prison offences on "escort officers".
Sub-clause (3) inserts a new provision into section 50 to ensure
that the options available to a disciplinary officer for dealing with
prison offences are not limited by the fact that the disciplinary
officer has referred the matter to the police.
Clause 35 corrects a typographical error.
Clause 36 corrects an outdated reference in the Act.
Clause 37 corrects an outdated reference in the Act.
PART 4--AMENDMENTS TO CUSTODY RELATED
PROVISIONS IN OTHER ACTS
Clause 38 amends the references to custody in the Children and Young
Persons Act in so far as they relate to the Secretary or
Department of Justice officers, and the Chief Commissioner of
Police, or members of the police force, to accord with the new
Part 1A.
Clause 39 amends the definition in the Coroners Act of "person in care" in
so far as it relates to the custody of the Secretary or Department
of Justice officers, and the Chief Commissioner of Police, or
members of the police force, to accord with the new Part 1A.
Clause 40 amends references in the Crimes Act to be consistent with the
amendments to Part 1A.
Sub-clause (3) amends section 479C of the Crimes Act, which
concerns escape and related offences, to ensure that the offence
reflects the amendments to Part 1A. In particular, to ensure that
where a person escapes, he or she does not continue in the legal
custody of the Secretary or the Chief Commissioner of Police,
but may be arrested and taken directly back to prison.
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Sub-clause (4) amends the reference to "prisoner" to ensure that
where a person escapes from the custody of the Court, he or she
can be prosecuted under sub-clause (3), which relates to
prisoners who are in custody, but outside prison. This is
intended to cover those individuals who have surrendered
themselves into the custody of the court in answer to bail, but
before having been taken into the physical custody of either
officers acting on behalf of the Secretary or the Chief
Commissioner, they abscond. In such circumstances, their
offending behaviour will be covered by section 479C(3).
Clause 41 amends the references to custody in the Evidence Act in so far as
they relate to the Secretary or Department of Justice officers, and
the Chief Commissioner of Police, or members of the police
force, to accord with the new Part 1A.
Clause 42 amends the references to custody in the Intellectually Disabled
Persons' Services Act in so far as they relate to the Secretary or
Department of Justice officers, and the Chief Commissioner of
Police, or members of the police force, to accord with the new
Part 1A.
Clause 43 amends the references to custody in the Magistrates' Court Act in
so far as they relate to the Secretary or Department of Justice
officers, and the Chief Commissioner of Police, or members of
the police force, to accord with the new Part 1A.
Clause 44 amends the references to custody in the Mental Health Act in so
far as they relate to the Secretary or Department of Justice
officers, and the Chief Commissioner of Police, or members of
the police force, to accord with the new Part 1A.
Clause 45 repeals section 101(4) of the Sentencing Act which states that a
person to be sentenced for an offence must, while in custody
pending sentencing, be taken to be in the lawful custody of the
Secretary or the Chief Commissioner of Police (according to
whether the person is in a prison or a police gaol).
This provision is no longer required following the amendments
made under this Act.
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