This speech was delivered on 11.10.2016 in the NSW Upper House. You can read the full debate online here. 

On behalf of The Greens I speak to the Crimes (Administration of Sentences) Amendment Bill 2016. The Greens do not oppose this bill. It makes a number of minor amendments to update terminology, to consolidate powers of correctional officers to stop, detain and search people, and to create a new disclosure framework to allow Corrective Services to share information. The proposed terminology change includes a change from the term “general manager” of a corrective centre to “governor”. The Greens see that as a race back to the nineteenth century; apparently the Minister likes the term “governor”. The bill changes “Probation and Parole Service” to “Community Corrections” and “mentally incapacitated person” to “a person with impaired intellectual function”. The last of those is a change in terminology that The Greens unambiguously support.

Schedule 1, clauses 12 to 14, consolidate the existing stop, search and detain powers and subsequent offences, primarily from the Summary Offences Act and the Crimes (Administration of Sentences) Regulation 2014 into the main Act. It is a consolidation of existing legislative provisions. The Government states, and The Greens review shows, that it does not make substantial changes to the current search, stop and detain regime that operates in and about correctional facilities. There is one substantive change to the lawful authority defence as it relates to places of detention. There is an offence of someone carrying without lawful authority an implement, alcohol or knife into or with intent to carry into a correctional facility. It is a defence if the person so found can assert that they had lawful authority. Currently the prosecution must prove the absence of lawful authority in order for the prosecution to succeed.

In December 2005 the Ombudsman recommended that the then Department of Corrective Services seek a legislative amendment placing the onus to prove lawful authority on the accused for offences contained within sections 27B and 27E of the Summary Offences Act. Those two offences have been consolidated in this bill. I credit the Minister with the historical research that found the 2005 Ombudsman report and recommendation that supported the legislative change. It was, no doubt, sitting gathering dust in the department’s archives and when this consolidation bill was presented the Government took the opportunity to implement it. A person accused of bringing an illegal, illicit or forbidden item into a correctional facility now has to prove lawful authority rather than the prosecution having to prove the absence of lawful authority.

That is consistent with a number of similar provisions in the Crimes Act. While we always have concerns about requiring a defendant in a criminal matter to bear the onus of proof of any element of the defence, given that it is in the defendant’s capacity only to prove lawful authority we understand the rationale and we do not oppose that part of the bill. Schedule 1, items [15] to [17], change the disclosure regime. That is the secrecy regime that relates to information about detainees and correctional facilities. A general statutory secrecy provision applies to correctional facilities and their operations in New South Wales, for the obvious reason that we do not want people in correctional facilities disclosing blueprints of jails, for example, or disclosing security operations or details about a prison.

That secrecy provision is separate from and in addition to the privacy arrangements under the Privacy and Personal Information Protection Act. The current system prohibits the disclosure of information unless an exemption applies. The change in this bill means that information can be disclosed if it is authorised by or in accordance with an official policy made by the commissioner. In that regard, The Greens have some concerns about the drafting of the proposed new section 257 (3) which provides for the additional exemption in the following terms:

(3)Without limiting the disclosures that may fall within subsection (1) (e)—

they are disclosures that are made with a lawful excuse—

a person makes a disclosure with lawful excuse for the purposes of that paragraph if the disclosure is:

(a)authorised by the Commissioner, or

(b)in accordance with an official policy made by the Commissioner for the purposes of this section.

There is enormous uncertainty about what an official policy is. No other part of the bill makes it clear. What is “a policy made by the Commissioner”? Does that include a policy made by somebody under delegated authority? When a policy is made by the commissioner, does it have to be signed off in a formal capacity by the commissioner? Is tacit approval by the commissioner sufficient? When drafting an exemption from a quite serious criminal penalty, where the maximum penalty is 100 penalty units or two years imprisonment or both, there should be far greater certainty than is put forward here. I invite the Parliamentary Secretary, in reply, to make it clear what that means. If, as I understand it, the term will be simply “an official policy”, that does not take matters any further than the current wording of the bill. With those observations, I indicate that The Greens will not oppose the bill.