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CLAUSE NOTES
Corrections (Miscellaneous Amendments) Bill 2016
Clause 1: Short title
Cites the Bill as the Corrections (Miscellaneous Amendments) Act 2016.
Clause 2: Commencement
Provides for the Bill to commence on the day on which it receives Royal Assent, except
for Part 3 which commences on a day or days to be proclaimed.
Clause 3: Principal Act
Provides that the Principal Act to which the amendments apply is the Corrections Act
1997.
Clause 4: Section 3 amended (Interpretation)
Provides for a definition for ‘migration detainee’ to be inserted into section 3 of the
Principal Act. The definition refers to the new section 83D which is inserted by the Bill.
Clause 5 Section 83D inserted
Inserts a new section 83D in Part 9 of the Act.
Inserts a new subsection (1) to provide a definition of ‘migration detainee’ as a person
who is not an Australian citizen within the meaning of the Australian Citizenship Act
2007, and who is being detained under the Migration Act 1958 and who, except for his
or her detention under the Migration Act 1958, is not subject to any order of a court
which remands or commits that person to prison.
Inserts a new subsection (2) to provide that, except for the provisions of subsections
(3) and (4), the Corrections Act applies to migration detainees in the same way that the
Act applies to detainees.
Inserts a new subsection (3) to provide that certain provisions under the Act relating to
leave permits for detainees and prisoners do not apply to migration detainees.
Inserts a new subsection (4) to provide that the regulations may provide that specified
provisions of the regulations have qualified application or no application to migration
detainees.
Clause 6 Principal Act
Provides that the Corrections Act 1997 is the Principal Act.
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Clause 7 Section 6 amended (Powers and duties of Director)
Inserts subsection (4) in section 6 of the Act to clarify that correctional officers and
State Service corrections employees must comply with standing orders made by the
Director for those officers and employees.
Subsection (5) provides that the above requirement imposed on officers and
employees to comply with standing orders is taken to be a conduct requirement under
section 9 of the State Service Act 2000.
Clause 8 Section 8A inserted
Inserts a new section 8A in the Act to require that a person who ceases to hold an
appointment or employment as a correctional officer or State service corrections
employee, must surrender to the Director of Prisons, all items of identification,
equipment, clothing and insignia, and all firearms and ammunition that were on issue to
that person immediately before he or she ceased to hold the appointment or
employment.
All items and firearms and ammunition must be surrendered within the prescribed
period.
The ‘prescribed period’ is defined as the 7 day period immediately following the day on
which the officer or employee ceases to be an officer or employee, or a longer period
as determined by a notice in writing given by the Director to the officer or employee
before or during the 7 day period. In relation to a firearm or ammunition, the
prescribed period is defined as the 24 hour period immediately after the person ceases
to be an officer or employee.
Items of identification include access passes, security passes and tags.
A penalty of a fine not exceeding 20 penalty units or imprisonment for a term not
exceeding 3 months is provided for for this offence.
Under subsection (4), if the items are of a kind that standing orders that are in force at
the relevant time allow the person to retain on ceasing to hold the appointment or
employment, the person is not required to surrender those items. This provision does
not apply to firearms or ammunition.
Under subsection (5), if the person fails to surrender an item of identification,
equipment, clothing or insignia as required, the Director, as soon as practicable after the
prescribed period, is to give the person a notice requiring that the item be surrendered
to the Director immediately, or within such time that the Director considers is
reasonable in the circumstances and which is specified in the notice.
Under subsection (6), the notice is to be given by registered post addressed to the
person’s place of residence last known to the Director.
Under subsection (7), the Commissioner of Police, at the written request of the
Director, may apply to a justice for a warrant to enter and search any place and seize
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anything found in the place that is required to be surrendered but which has not been
surrendered.
Subsection (8) provides that a justice may issue a warrant if satisfied there are
reasonable grounds to believe that there is on or in any place anything that is required
to be surrendered but which has not been surrendered.
Under subsection (9), a warrant authorises a police officer to enter and search the
place specified in the warrant, and to seize anything that the police officer reasonably
believes is required to be surrendered.
Subsection (10) requires that a warrant is to specify the date and time by which the
warrant no longer has effect.
Subsection (11) provides that if the occupier of the place is not present or refuses
permission, the police officer may execute the warrant using any reasonable force
necessary and do anything reasonably required to execute the warrant.
Clause 9 Section 20 amended (Formal searches)
Updates the Act by removing references to being “carried out by an electronic or
mechanical device” in the definition of “formal search” in subsection (1) and inserts a
new subsection (4) to clarify that, for the purpose of carrying out a formal search, a
correctional officer may employ such assistance and means that he or she believes on
reasonable grounds to be necessary for the purpose, including but not limited to
scanning and detection devices.
Clause 10 Section 22 amended (Searches and examinations)
Existing subsections (1) and (2) of section 22 of the Act are omitted and replaced with
the following provisions.
Subsection (1) provides that for the security or good order of the prison or prisoners
or detainees, the Director may at any time order a correctional officer or State Service
corrections employee to search or examine or search and examine, any part of the
prison, any vehicle, equipment, container or other thing in the prison.
Subsection (1A) also provides that for the security or good order of the prison or
prisoner or detainees, the Director may at any time, order a correctional officer to
search or examine, or search and examine a prisoner or detainee, a visitor to the
prison, a correctional officer or any person appointed or employed for the purposes of
the Act or any other person in the prison.
Instead of or as well as a formal search under section 20 of the Act, the Director may
also order a correctional officer to require a person who wishes to enter the prison to
submit to a search or examination or search and examination of the person and of
anything in the person’s possession or control.
A search or examination or search and examination under subsection (1) or (1A) may
be conducted at random.
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Under subsection (2), if a person (other than a prisoner, detainee, correctional officer
or State Service corrections employee) who has been required to submit to a search or
examination or search and examination, refuses to submit while inside the prison, the
Director may order the person to leave the prison immediately.
The clause also clarifies that the references in subsection (4) of section 22 mean “search
or examination or search and examination” rather than “search or examination” alone.
For the purpose of carrying out a search or examination or search and examination
under section 22, a correctional officer or State Service corrections employee may
employ such assistance and means that he or she believes on reasonable grounds to be
necessary for the purpose, including but not limited to scanning and detection devices.
Clause 11 Section 22A inserted
Inserts a new section 22A including the following definitions:
‘detector dog’ means a dog that has been, or is being trained by a State or
Commonwealth law enforcement agency to detect particular substances or
items.
‘detector dog handler’ means a person whose duties, whether as a police officer,
correctional officer or otherwise, includes the handling of a detector dog.
‘search’ means a formal search carried out by a correctional officer under
section 20, or a search or examination or search and examination carried out by
a correctional officer or State Service corrections employee pursuant to an
order of the Director given under section 22 of the Act.
Subsection (2) provides that a correctional officer or State Service corrections
employee who is carrying out a search may be accompanied and assisted by a
detector dog and a detector dog handler.
Under subsection (3), a detector dog may be used in such manner as the
persons carrying out or assisting with the search think fit given the nature of the
search and the capabilities of the detector dog.
Subsection (4) makes it an offence for a person to, without lawful excuse, do
anything that is likely to impede or interfere with the effective use of a detector
dog in a search. A penalty of 20 penalty units or imprisonment for a term not
exceeding 12 months is provided for.
Subsection (5) makes it clear that if a person impedes or interferes with the use
of a detector dog, it is irrelevant whether that conduct occurs during or before
the search.
Subsection (6) makes it an offence for a person to, without lawful excuse, strike,
injure, maim or kill a detector dog that accompanies and assists a correctional
officer or State Service corrections employee in carrying out a search. A penalty
of 20 penalty units or imprisonment for a term not exceeding 12 months is
provided for.
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Subsection (7) makes it clear that if a person strikes, injures, maims or kills a
detector dog, it is irrelevant whether that conduct occurs during or immediately
before or after the search.
Under subsection (8), neither the Crown nor any correctional officer, State
Service corrections employee or detector dog handler is liable to any action,
liability, claim or demand because a detector dog entered or was present at a
prison, or initiated or inadvertently made contact with any person or any
person’s possession.
Clause 12 Section 23 amended (Seizure)
Section 23 of the Act is amended to make the seizure provisions consistent with the
new terminology and changes that have been made under section 20 and 22.
Clause 13 Section 25A inserted
Where the Act was previously silent on this issue, this clause inserts a new section 25A
to clarify that a police officer may arrest a person without warrant, if the police officer
believes on reasonable grounds that the person has committed an offence under
section 12(3) (visits), section 15(3) (exclusion of visitors for security reasons), section
18(2) and (4) (visitors to give prescribed information), section 19(2) (Director may
refuse or terminate visits for security reasons), section 22(3) (search) and section
22A(4) and (6) (use of detector dogs).
Clause 14 Sections 34AA, 34AB and 34AC inserted
Inserts a new section 34AA in the Act to provide for the Director to allow a prisoner
or detainee, on request, to hire equipment and items that are additional to the standard
equipment and items issued.
Under subsection (2), the additional equipment and items may be hired on such
conditions and hiring fee that the Director determines.
Subsection (3) specifies that the hiring fee is not to exceed the reasonable cost of
providing and operating the equipment or items. The fee may be a nominal amount.
Subsection (4) provides that the Director may recover the hiring fee from monies held
by the Director on behalf of the prisoner or detainee.
Inserts a new section 34AB to provide that a prisoner must not conduct a business in
or from prison without the consent of the Director to conduct that business.
Subsection (1) defines ‘conduct a business’ to include making preparations to conduct a
business, for example applying for an Australian Business Number.
Subsection (3) provides that in determining whether to give consent, the Director may
consider any such matters as he or she thinks fit in the circumstances. This includes:
whether the conduct of the business could reasonably be expected to excite
adverse community reaction, particularly from victims of crime;
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whether there is any risk that any person could use the business for unlawful
ends;
whether the conduct of the business could disrupt prison routine or
compromise its management, good order or security;
whether it would be reasonably practicable and manageable to conduct the
relevant business in a prison environment;
the regulatory requirements, compliance and legal capacity issues associated
with conducting the business;
whether conducting that type of business was the basis for or a relevant factor
in the unlawful conduct of the prisoner; and
whether there could be rehabilitative benefits for the prisoner.
Subsection (4) provides that the Director has absolute discretion to withdraw his or her
consent to conduct the business at any time.
If the Director gives consent in good faith or withdraws his or her consent to conduct a
business, no liability attaches to the Director or the Crown.
This clause also inserts a new section 34AC to provide that a prisoner or detainee must
not make a change of name application without the consent of the Director.
Subsection (1) inserts the following definitions:
- ‘change of name application’ means an application to a Registrar for the
registration of change of a prisoner’s or detainee’s name.
- ‘make’ an application, includes causing or allowing the application to be made on
a prisoner or detainee’s behalf.
- ‘Register’ means the Tasmania Register or equivalent register in another State or
Territory.
- ‘Registrar’ means the Tasmanian Registrar or an authority responsible under a
law of another State or Territory for the registration of births, deaths and
marriages.
- ‘Tasmanian Register’ means the Register of Births, Deaths and Marriages under
the Births, Deaths and Marriages Registration 1999.
- ‘Tasmanian Registrar’ means the Registrar of Births, Deaths and Marriages
appointed or employed under the Births, Deaths and Marriages Registration Act
1999.
Subsection (3) provides that the Director, in determining whether to give consent to a
name change application, may consider such matters he or she thinks fit in the
circumstances, including the following:
whether the proposed name change could reasonably be expected to excite
adverse community reaction, particularly from victims of crime;
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whether there is any risk the proposed name change could be used for unlawful
or improper ends (including disguise or evasion);
whether the proposed name change could disrupt prison routine or
compromise its management, good order or security;
whether the prisoner or detainee has previously changed his or her name or has
any history of using aliases; and
whether every complaint or information that the Director is aware of, which
alleges an offence by the prisoner or detainee against the law of any State or
Territory or the Commonwealth, has been finally dealt with.
Subsection (4) requires that the Director, as soon as practicable after a determination is
made, is to notify the relevant prisoner or detainee of a consent or refusal of consent to
a name change, and in the case of a refusal the reasons for the refusal.
Subsection (5) requires that the Director is to notify a relevant Registrar and the
Secretary of the Parole Board if he or she has given consent to a name change, along
with the particulars. This is to be done as soon as practicable after the consent is given.
Subsection (6) provides that the Tasmanian Registrar is not to register a name change if
he or she is aware that the applicant is a prisoner or detainee and notification of the
name change has not been received by the Registrar.
Subclause (7) provides that if a prisoner or detainee succeeds in having his or her name
registered in any State or Territory without the required consent from the Director, the
Director may apply to the relevant Registrar to correct the Register by cancelling the
relevant entry.
Under subsection (8) if the Tasmanian Registrar receives an application from the
Director requesting that he or she correct the Register and cancel an entry, the
Registrar is to correct the Register, unless prevented from doing so by a court order.
Subsection (9) provides that if there is any inconsistency between the provisions of
section 34AC and the Births, Deaths and Marriages Registration Act 1999, the provisions
of section 34AC prevail.
Clause 15 Section 34B amended (Authorised use of force)
Amends section 34B(1) of the Act by inserting a new paragraph (ab) to clarify that a
correctional officer may use force that is necessary and reasonable to carry out a search
or examination, or search and examination pursuant to an order of the Director given
under Section 22 of the Act.
Clause 16 Section 42 amended (Leave permits)
Inserts a new subsection 8A in section 42 of the Act, to clarify that a correctional officer
who is not a custodian of a person who is granted a leave permit under the Act, may
return the person to a prison. This applies if the correctional officer believes on
reasonable grounds that the person has failed to comply or is likely to fail to comply
with a condition or restriction to which a leave permit is subject.
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Subsections (9) and (10) of section 42 of the Act are amended to give effect to the
new subsection 8A by clarifying that these subsections now apply to a correctional
officer who is not a custodian of the person who has been granted a leave permit
under section 42.
Clause 17 Section 87C inserted
Inserts a new section 87C in Part 9 of the Act to provide that a health official may
disclose to the Director such health information about a prisoner or detainee as the
Director reasonably requires for the treatment, care and rehabilitation of the prisoner
or detainee.
Subsection (1) inserts the following definitions:
‘health information’ concerning a prisoner or detainee, means information about
that prisoner or detainee’s health or medical treatment.
‘health official’ means any of the following: the Chief Forensic Psychiatrist, the
chief executive officer of a Tasmanian Health Organisation, a person prescribed
by the regulations, and a member of a class of persons prescribed by the
regulations.
Subsection (3) provides that a health official who discloses health information under this
section:
does not incur any criminal, civil or administrative liability;
is not taken to have breached any rule of law or practice that would prohibit
the person from making the disclosure;
is not taken to have broken any professional or other oath, or breached any
professional or other code, standard or guideline of ethics or etiquette that
might bar the person from, or condemn the person for making the disclosure;
and
is not liable to condemnation or disciplinary action by any professional body or
other person.
Subsection (4) provides that the provisions of subsection (3) have effect, despite the
provisions of the Person Information Protection Act 2004 or any other law relating to the
confidentiality or privacy of information.
Subsection (5) provides that the Director is not to use health information that is
disclosed to him or her, except for the purposes of determining and managing the
prisoner’s or detainee’s treatment, care and rehabilitation.
Clause 18 Section 90 amended (Regulations)
Amends section 90(2)(c) of the Act to insert the phrase ‘searches or examinations, or
searches and examinations’ which is consistent with the terminology adopted in the
amendments which are made to sections 20 and 22 of the Act.
Clause 19 Schedule 1 amended (Prison offences)
Amends Schedule 1 of the Act by extending to detainees, the prison offence (item 18)
of having in the prisoner’s possession anything that is not authorised.
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Amends Schedule 1 by inserting the new prison offences introduced by these
amendments, including:
striking, injuring, maiming or killing, without lawful excuse, a detector dog;
impeding or interfering, without lawful excuse, with a detector dog;
conducting a business in or from prison without the Director’s consent; and
Making or causing or allowing the making of a change of name application
without the Director’s consent.
Clause 20 Principal Regulations
Provides that the Principal Regulations to which the amendments apply are the
Corrections Regulations 2008.
Clause 21 Regulation 26 amended (Destruction of records on acquittal,
&c.)
Amends the Corrections Regulations 2008 by providing that biometric data, photos,
images, electronic records or other records made under regulation 25 are to be
destroyed as soon as practicable after a migration detainee is released under the
Migration Act 1958.
Clause 22 Further amendment, &c of Corrections Regulations 2008
Provides clarification that the provisions of the Corrections Regulations 2008 which are
amended by the Bill can subsequently be amended or rescinded by future regulations.
Clause 23: Repeal of Act
This is a standard repeal provision to remove the empty shell of the Bill after all of its
provisions have been transferred and have come into effect in the Principal Act.
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