ALERT DIGEST 11 of 1994

Part 2

4.1

This Bill was introduced into the Legislative Assembly on 12 October 1994 by The Honourable Pat McNamara MP with The Honourable Phil Gude MP.

4.2

This Bill amends the Corrections Act 1986. In particular, its purposes are:-

to provide for the powers of the Minister in relation to agreements for the provision of correctional services;
to provide for the powers of the Chief Commissioner of Police in relation to agreements for the provision of custodial and certain other services in relation to police gaols;
to provide for leave of absence for prisoners to travel interstate;
to improve the administration of that Act;
to amend the Prisoners (Interstate Transfer) Act 1983 to recognise the Australian Capital Territory as a participating State for the purposes of that Act.

4.3

Clause 4 substitutes a new definition of "contractor" to include persons contracting with the Minister, the Director-General or the Chief Commissioner of Police. It also amends the definition of "correctional services" to include services related to prisoners.

Clause 5 gives the Director-General the power to delegate to the Commissioner, an officer or employee of the Department of Justice or to any officer within the meaning of Part 5 or Part 9 any functions, powers or duties. The Committee notes that the people to whom the powers may be delegated are limited. The Committee also notes that with the addition of the "Commissioner", the new clause is drafted in identical terms to the old section 8.

Clause 6 provides for the appointment of a Commissioner by the Director-General and sets out his or her responsibilities.

4.4 _Ż Minister may enter into correctional services and ancillary agreements

Clause 7 inserts a new Division 1 into Part 2A. New section 8B(1)(a) makes provision for the Minister to enter into correctional services agreements. The Minister must obtain the written approval of the Treasurer before entering into an agreement. New section 8C sets out the matters which must be included in the agreement.

Ancillary agreements

New section 8B(1)(b) provides that the Minister may enter into ancillary agreements with a person or a body. Subclause (2)(g) of new section 8C provides that in the case of an ancillary agreement, provision must be made for the Minister to take over the rights or obligations under any other agreement and must set out the circumstances of the transfer of the land to the Minister.

New section 8C(1) lists the matters which must be included in an agreement. However new section 8C(2)(f) provides that there may be "a provision providing for the suspension of obligations under the agreement in specified circumstances."

The Committee has written to the Minister requesting his advice as to whether those matters which are mandatory in an agreement can be suspended by the operation of section 8C(2)(f).

New section 8D provides that land transferred pursuant to an ancillary agreement is deemed to be unalienated land of the Crown, freed from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. Subclause (4) of new section 8D provides that no compensation is payable by the Crown in respect of any transfer of land under section 8B(1)(b). This is discussed later at 4.7.

New section 8E provides that a contractor or sub-contractor must give the Minister, the Director-General and any other person authorised by the Director-General free and unfettered access for the purpose of ensuring compliance with the Act. New section 8E provides that the Minister may intervene in the management of a correctional services if there is an emergency or the contractor has failed to provide competent management of the service. The Minister may appoint an administrator to manage the service.

New section 8G provides that documents and other information required under section 218 of the Building Act 1993 do not have to be lodged with the Council. The Committee notes the comments in the Second Reading Speech:-

"The Bill recognises that the construction of the new private prisons will necessitate an exemption from the requirements of section 218 of the Building Act that the plans and specifications for the prison be lodged with the local council, it is clearly not in the public interest for the detailed plans of prisons to be made available to the public for inspection."

4.5

Clause 9 makes various amendments relating to management agreements entered into by the Director-General. The Director-General may enter into agreements with a person or body for the provision of correctional services. Subclause (2) amends section 9(3) to specify the various matters an agreement may contain. A contractor may be required to provide a performance bond.

Clause 10 inserts a new Division 3 into Part 2A. It provides for the Chief Commissioner of Police to enter into custodial service agreements relating to police gaols. New section 9AB sets out the matters to be included in an agreement. New section 9AC provides that a contractor or sub-contractor must give the Chief Commissioner of Police free and unfettered access for the purpose of ensuring compliance with the Act.

Clause 12 provides that the Chief Commissioner of Police may by instrument, authorise a person employed by a contractor under Division 3 (ie: see the new Division 3 -Agreements in respect of Police Gaols - custodial services, services related to the transport of persons to or from police gaols or services related to court security) to exercise all of the functions and powers as may be exercised under the Corrections (Police Gaols) Regulations 1993. The Committee notes the comments in the Second Reading Speech:-

"Persons delivering such services will have the same powers under the Corrections Act 1986 as currently exercised by members of the police force in the management of police gaols but they will not be able to exercise other police powers which are exercised under the Police Regulation Act."

Clause 13 requires the Director-General to request the Chief Commissioner of Police to inquire into and report to him or her on the character, honesty and integrity of any relevant person relating to an agreement entered into by the Minister or the Chief Commissioner of Police.

Clause 14 provides that any person authorised to exercise powers and functions under the Corrections (Police Gaols) Regulations 1993 has the status of a member of the police force. A person authorised may where necessary use reasonable force to compel a person who is deemed to be in custody of the Chief Commissioner of Police to obey an order. Where a person uses force, the person must report the fact to the Chief Commissioner of Police without delay. A person who uses force in accordance with the section, ie: reasonably, is not liable for injury caused by that use of force. This is discussed at 4.7.

Clause 16 requires the Chief Commissioner of Police to prepare a written statement of minimum standards in relation to the provision of services by a contractor. Clause 17 extends the application of the Freedom of Information Act 1982 to contractors under agreements entered into under the Corrections Act 1986 by the Minister and the Chief Commissioner of Police. Clause 18 extends the application of the Ombudsman Act 1973 to agreements entered into under the Corrections Act 1986 by the Minister and the Chief Commissioner of Police.

Clause 19 sets out the new powers of the Director-General. Clause 20 gives the Director-General the power to prohibit persons from entering a prison if he or she believes on reasonable grounds that the security or safety prisoners or visitors is threatened.

4.6 _Ż Interstate Leave of Absence for prisoners

Clause 21 inserts a new Part 8A which provides for interstate leave of absence for prisoners. New section 82 provides that the Director-General may issue a custodial community permit. New section 83 sets out the effect of the permit which must not exceed 3 days. New section 84 provides for the variation or revocation of a permit. New section 84A provides for a penalty in the case of a breach of a permit. New section 84B provides that notice must be given to participating states. New section 84C sets out the effect of a permit issued under interstate law. New section 84D governs the escape from custody of a prisoner on leave of absence. New section 84E sets out the penalty for a person who escapes from custody whilst under a permit.

4.7 _Ż Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 22 inserts a new section 111A which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions for compensation and liability in respect of new sections 8D and 9CB. It is convenient to consider them separately.

(a) New section 8D(4) provides that no compensation is payable by the Crown in respect of any transfer of land under any ancillary agreement. The Committee notes the comments in the Second Reading Speech:-

"Section 8D provides that no compensation is payable where land is transferred to the Minister pursuant to an agreement entered into between a contractor and the Minister except to the extent that the agreement provides for compensation.

The reason for preventing the entertaining of these proceedings is to enable a clear and unencumbered transfer of land to the Minister free of all pre-existing interests and rights in the land and all claims for compensation based on them other than claims under the agreement."

The Committee is of the view that the provision is appropriate and desirable in all the circumstances.

(b) New section 9CB provides that an authorised person who uses reasonable force whilst minding prisoners in custody is not liable for injury caused by that use of force. The Committee notes the comments in the Second Reading Speech:-

"Section 9CB will provide where a person employed by a contractor to manage a police gaol and it is necessary to use reasonable force in the performance of their duties that the person does not incur any liability for acting in accordance with that clause.

The reason for preventing the entertaining of these proceedings is that without the protection provided in clause 22 that clause would not be effective to enable persons required to manage police gaols to ensure the security and welfare of all detainees."

The Committee questions the need to limit the jurisdiction of the Supreme Court in this instance. The Committee is of the view that the same end could be achieved by the insertion of a provision which enables a defence of reasonable force to a charge brought by a prisoner. The Committee has written to the Minister.

The Committee makes no further comment.

Committee Room
25 October 1994

Last update 22/7/99
ŠParliament of Victoria