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This is a Bill, not an Act. For current law, see the Acts databases.
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
228--1 page i
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
page ii
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
page iii
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
page 2
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.
page 4
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,
page 6
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;
page 8
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).
page 12
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
page 14
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).
".
page 36
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.
page 37
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; ".
page 38
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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