Digest No. 1941
Main Provisions
Powers which may not be delegated
The Bill makes two additions to the list of powers which the chief executive cannot delegate. Those powers are:
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the power to grant approvals under New Section 66A(2), which requires the chief executive to approve the work of self-employed prisoners and conditions of work; and
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the power to approve employees under Section 48 (power to reconsider a security classification on the application of the prisoner concerned) or under any regulations made under the Act (Clause 5, amending Section 10 of the Act).
Removal of Visiting Justices from decision to extend the use of mechanical restraints
Currently, Visiting Justices have a power to approve the extension of the use of mechanical restraints for longer than 24 hours.
The Bill provides a power for prison managers to extend the use of mechanical restraints to prison managers who may do so “only if in the opinion of a medical officer, continued restraint is necessary to protect the prisoner from self-harm” (Part 1, Clause 25, substituting Section 87(5) of the Act; Clause 6, repealing Section 19(4)(f) of the Act).
Health centre managers and responsibilities in relation to records
Currently, the responsibility for the provision of health services is the responsibility of medical officers.
The Bill provides that health centre managers who are employees of Department of Corrections (the department) or a contractor in the case of a contract prison “are responsible for ensuring the provision of health care and treatment of prisoners”. The Bill requires the appointment of a health centre manager, who must be either a medical practitioner or a nurse, for each prison. A health centre manager must:
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maintain an adequate record of the health care and treatment provided to prisoners in prison;
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keep full health records (including dental records) secure; and
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ensure that the health record of a prisoner or former prisoner is not treated as part of the prison record of that prisoner.
The Bill also provides that medical officers are under similar obligations but are only required to maintain and keep secure records relating to the health care and treatment they personally provide (Part 1, Clause 7, inserting New Section 19A into the Act; Clause 38, Clause 40, substituting Section 165 of the Act).
A sufficient number of medical officers must be appointed
Currently, there must be appointed at least one medical officer for each prison (other than a Police jail).
The Bill provides that every prison must have a “sufficient number of medical officers to meet prisoners’ needs for medical care and medical treatment” (Part 1, Clause 8, substituting Section 20 of the Act).
Authorised property
The Bill requires the chief executive (in respect of Department of Corrections prisons ( Corrections prisons) or the Police Commissioner (in respect of Police jails) to make rules declaring the items of property that prisoners may be issued with or may keep (authorised property). The chief executive or the Commissioner may also make rules imposing conditions that attach to authorised property. There are requirements relating to the publication of the rules such as that they must be published on an Internet site and notice must be given in the Gazette stating the Internet site where they are published, the place where the rules can be inspected, and the place where they can be purchased. Such rules are deemed to be regulations for the purposes of the Regulations Disallowance Act 1989 (i.e. they must be placed before the House of Representatives and may be disallowed) but not for the purposes of the Acts and Regulations Publications Act 1989 (Part 1, Clause 13, inserting New Section 45A into the Act).
Reconsideration of security classifications
The Act currently reserves reconsideration of a prisoner’s security classification to the chief executive or his or her delegate.
The Bill enables an approved employee of the department or a contractor in the case of a contract prison to reconsider a security classification. An approved employee is a person who is not a staff member of a prison and who is approved by the chief executive to reconsider security classifications of prisoners (Part 1, Clause 14, amending Section 48 of the Act).
Segregation of prisoners for the purpose of medical oversight
The Bill provides that the recommendation for a direction to segregate a prisoner must now be made by a health centre manager (instead of a medical officer) after consultation with an appropriate medical practitioner if the recommendation relates to matters outside the health centre manager's scope of practice. The health centre manager assumes other responsibilities such as arranging for the visit of a registered health professional to visit the segregated prisoner, except that the health centre manager (instead of the prison manager) must now arrange for these visits unless he or she thinks that it is it is not necessary in the circumstances (Part 1, Clause 15, amending Section 60 of the Act).
Temporary release or removal from a contract prison
The Bill provides that, in the case of a contract prison, the contractor may make decisions about the temporary release or removal of a prisoner from a contract prison. The contractor of a contract prison may make decisions relating to the period for which a prisoner is temporarily released and impose conditions on the release and also power is given to fix the period of the temporary removal of a prisoner and the conditions of that removal. (Part 1, Clause 16, amending Section 62 of the Act; Clause 17, amending Section 63 of the Act; Clause 18, amending Section 64 of the Act).
Self-employment and earnings therefrom
The Bill allows prisoners to be self-employed while in custody in work intended to provide the prisoner with work experience or work (as approved by the prison manager) that assists in the prisoner's rehabilitation or reintegration into the community. In relation to the earnings of a self-employed prisoner while on temporary release or while in custody, the Bill requires prisoners' earnings to be paid to the chief executive to the credit of the prisoner and any person who receives money on behalf of a self-employed prisoner must pay the earnings to the chief executive after deducting any commission. The Bill also provides that money (which must not exceed the weekly rate fixed by the Minister) paid to the chief executive in respect of a self-employed prisoner must be applied to the cost of the prisoner's detention (Part 1, Clause 19, inserting New Section 66A into the Act; cf. Section 66 of the Act (similar restrictions imposed on the employment of prisoners generally); Clause 20, amending Section 67 of the Act; Clause 21, amending Section 68 of the Act).
Minimum entitlement to physical exercise
The Bill provides that the minimum entitlement to physical exercise may be denied where a prisoner has been outside the prison under Section 62 (temporary release from custody or temporary removal from prison) or Section 65 (removal for judicial purposes) and it is not practicable, in the opinion of the prison manager, to provide the prisoner with the hour of physical exercise during the times the prisoner is inside the prison (Part 1, Clause 22 amending Section 69).
Bending and the use of instruments for illumination in strip searches
The Act, for the purpose of facilitating a strip search, currently allows the person conducting the search to require the person being searched to, with his or her legs spread apart, bend his or her knees.
The Bill now allows the person conducting the search to require the person being searched to, with his or her legs spread apart, bend his or her knees until his or her buttocks are adjacent to his or her heels.
The Bill provides that the authority to conduct a strip search:
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includes the authority to conduct a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, ears, and anal and genital areas; but
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does not authorise the insertion of any instrument, device, or thing into any orifice of those kinds.
The Act currently forbids the use of those instruments and devices when conducting visual examinations of the anal and genital areas.
The Bill now allows the use of an instrument or device designed to illuminate or magnify when conducting a visual examination of any bodily orifice (Part 1, Clause 26, amending Section 90 of the Act).
Searches of prisoners’ cells
In relation to searches of prisoners and cells, the Bill:
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removes the requirement that an officer must obtain the prison manager's approval to conduct a strip search of a prisoner whom the officer believes on reasonable grounds possesses an unauthorised item (new section 98(3)(a));
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replaces, in the list of situations in which a strip search is justified, the words “on the return of the prisoner to the prison” with the words “on the return of the prisoner to the prison after the prisoner is temporarily released from custody”;
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require a prisoner to undergo a strip search on returning to the prison after being outside the prison in the control of an officer unless the prisoner is returning from work;
The Bill also clarifies a risk when a prisoner is required under Section 124 of the Act to submit to a prescribed procedure for the purpose of detecting whether or not the prisoner has used drugs or consumed alcohol, or both. That prisoner may be required immediately before he or she supplies a sample in accordance with that procedure, to undergo a strip search conducted by an officer because the nature of the prescribed procedure is such that there is a risk that the prisoner may tamper with the sample and a strip search is necessary to ensure that such tampering does not occur. That risk is clarified by replacing the word “tamper” with the words “dilute, contaminate or otherwise tamper” (Part 1, Clause 27, amending Section 98 of the Act).
Opening prisoners’ mail
The Bill provides that any staff member may open prisoner mail but that only authorised officers may read prisoner mail and amends, as a consequential amendment, the definition of authorised officer to omit the reference to an officer opening mail. However (and this is the same as the current law except the mention of the “staff member” and the new role for such a person), a staff member must not open any mail and an authorised officer must not read any correspondence or withhold any mail that is:
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from a prisoner to an official agency; or
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from a prisoner to a Member of Parliament and is addressed to that Member at Parliament; or
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from an official agency or Member of Parliament to a prisoner, and accompanied by a covering letter addressed to the prison manager stating that the agency or member of Parliament is acting in an official capacity in respect of the prisoner.”
Also the same as the current law except the mention of the “staff member” and the new role for such a person, the Bill provides that a staff member must not open any mail and an authorised officer must not read any correspondence or withhold any mail between a prisoner and his or her legal adviser, unless authorised to do so by the (existing) subsections (2)-(6) of Section 110 of the Act (Part 1, Clause 29, amending Section 103A of the Act; Clauses 30-33, amending Sections 104, 106 and 110 of the Act and substituting Section 109 of the Act).
Prisoner may be required to submit to drug or alcohol test
The Bill provides that a prison manager need only “suspect” on reasonable grounds that a prisoner has committed an offence relating to drugs and alcohol before requiring a prisoner to submit to a drug or alcohol test. The current requirement is a higher standard: that a prison manager must believe on reasonable grounds that a prisoner has committed such an offence (Clause 34, amending Section 124).
Disciplinary offences: penalty of forfeiting privileges
The Bill enables the hearing adjudicator or the Visiting Justice to choose the privileges that a prisoner may lose when imposing a penalty of forfeiture or postponement of privileges and requires the hearing adjudicator to take into account a prisoner's circumstances before imposing any forfeiture or postponement of those privileges (Part 1, Clause 38, amending Section 133 (“Powers of hearing adjudicator in relation to offences against discipline”); Clause 39, amending Section 137 (“Powers of Visiting Justice in relation to offences by prisoners”)).
Delegations to contract prisons
The Bill expressly provides for the delegation of the powers and functions of the chief executive to a contractor or an employee of a contractor in relation to a contract prison (Part 1, Clause 42, inserting New Section 199AA).
Contract prisons
The Bill requires a contractor to report on the exercise of any functions and powers delegated to an employee of the contractor who is not a staff member of a prison. The Bill gives a right of access to employees of a contractor who are not staff members of a prison and who are exercising delegated functions and powers of the contractor. The Bill also provide that a monitor of a contract prison appointed under Section 199E(1)(a) of the Act must review the exercise of functions and powers delegated from the chief executive to the contractor and the contractor's employees (Part 1, Clause 3 43-45, amending Sections 199D, 199F and 199G(1)(i) of the Act).
Amendment to Courts Security Act 1999
The Bill limits the powers of court security officers over accused persons in court who are in the custody of officers within the meaning of the Corrections Act 2004 (Part 2, Clause 46 amends section 25 of the Courts Security Act 1999).
