First Reading
Bill introduced on motion by Mr Anoulack Chanthivong, read a first time and printed.
Second Reading Speech
Mr ANOULACK CHANTHIVONG (Macquarie Fields—Minister for Better Regulation and Fair Trading, Minister for Industry and Trade, Minister for Innovation, Science and Technology, Minister for Building, and Minister for Corrections) (14:31): I move:
That this bill be now read a second time.
I am proud to introduce the Crimes (Administration of Sentences) Amendment Bill 2024. The bill amends the Crimes (Administration of Sentences) Act 1999 to enhance transparency and integrity in the operations of Corrective Services NSW. The proposed amendments strengthen the offence that prohibits relationships between correctional employees and inmates, in response to a recommendation made by the Special Commission of Inquiry into Offending by Former Corrections Officer Wayne Astill at Dillwynia Correctional Centre. The bill also introduces several miscellaneous amendments to improve clarity and transparency and ensure that provisions in the supporting Crimes (Administration of Sentences) Regulation 2014 are appropriately supported by express regulation-making powers in the Act.
The Government established the Astill inquiry in July 2023 to investigate the offending of former corrections officer Wayne Astill and the institutional response to his offending. The inquiry, led by the Hon. Justice Peter McClellan, AM, KC, found multiple failings in the management and culture at Dillwynia Correctional Centre. The inquiry's findings also stated that it would be incorrect to assume that the deficiencies identified at Dillwynia Correctional Centre were not present at other correctional facilities across New South Wales. The Government has accepted all 31 recommendations, either in full or in principle, and is committed to undertaking the reform necessary to lift standards, deliver safer workplaces for staff and better protect inmates. The bill also plays a crucial role in the Government's implementation of the recommendations by amending the Act to strengthen offence provisions relating to intimate relationships and sexual conduct between correctional employees and inmates.
The reforms proposed in the bill complement a series of immediate and long-term actions the Government is taking in response to the Astill inquiry. Since the findings of the inquiry were handed down in March this year, the Government has made a $30 million investment to support priority reforms, including installing hundreds of new CCTV cameras and a network-wide capacity to store and access footage for at least 90 days so that serious matters can be reviewed; establishing a new advocacy service to ensure female inmates can voice concerns; implementing new staff misconduct processes and procedures, including improved triaging, allowing faster resolutions; funding a women's strategy that includes mandatory training for all new Corrective Services staff working in female correctional centres; and hiring additional staff to improve misconduct management processes.
The Government also established a sexual misconduct reporting line to provide a free, confidential mechanism of reporting and support for inmates. Further, on 1 October the Government elevated Corrective Services NSW to be a standalone agency directly accountable to me, as the Minister for Corrections, and to the New South Wales Government. What those changes show is that this Government is absolutely committed to undertaking the necessary reform to restore integrity, trust and confidence in Corrective Services NSW. The bill plays a fundamental role in that work.
I now turn to the detail of the bill. The most critical elements of the bill are the proposed amendments to section 236Q and supporting provisions of the Act, which introduce new misconduct offences for relationships between staff and inmates. Currently it is an offence under section 236Q of the Act for a correctional employee to engage in sexual conduct or an intimate relationship with an inmate or a person who is subject to a community‑based order if that conduct or relationship causes a risk or potential risk to the safety or security, or good order and discipline, of a correctional centre, or compromises the proper administration of a sentence or community‑based order. The maximum penalty for the offence is a fine of $2,200 and/or imprisonment for two years.
Recommendation 4 of the Astill inquiry provides that section 236Q of the Act should be amended so that to prove an offence against a correctional employee who has engaged in sexual conduct or an intimate relationship with an inmate, there is no need to further prove risk or potential risk to the safety, security, good order and discipline of a correctional facility. The recommendation also provides that the offence should remain in its current form in relation to a correctional employee who has engaged in sexual conduct or an intimate relationship with a person subject to a community-based order. In response to recommendation 4, the bill amends current section 236Q of the Act to split it into three separate misconduct offences. The maximum penalty for each offence remains a fine of $2,200, imprisonment for two years or both.
The first offence, in new section 236Q (1), applies where a correctional employee engages in sexual conduct or an intimate relationship with an inmate. In line with recommendation 4, in that instance there will no longer be a requirement to prove particular risks to the correctional facility nor a compromise to the proper administration of a sentence to be considered an offence. This avoids any unnecessary barriers to prosecutions of the offence. The second offence, in new section 236Q (1A), applies in cases where there is a pre-existing relationship as a couple between the correctional employee and the inmate who engage in sexual conduct or an intimate relationship.
The bill introduces a consequential definition of a "pre-existing relationship as a couple" to mean a continuing relationship as a couple that existed before the inmate entered into custody or the person subject to a community-based order commenced the order. The types of relationships envisaged include a marital, de facto or long-term relationship that existed before the offender entered custody or began serving their order and that continues to exist while the offender is serving their sentence. The new offence criminalises sexual conduct between a correctional employee and an inmate who are in a pre-existing relationship as a couple, without the need for this conduct to pose any particular risks to the correctional facility nor a compromise to the proper administration of a sentence.
This makes clear the Government's view, informed by the Astill inquiry, that sexual conduct should be entirely prohibited between a correctional employee and an inmate, regardless of whether there is a pre-existing relationship as a couple, because such behaviour constitutes an abuse of the correctional employee's position. However, throughout consultation, the Government has been made aware of the need to differentiate between sexual conduct and an intimate relationship in the proposed amendments. The bill therefore also makes two consequential amendments to the current definitions of "sexual conduct" and "intimate relationship".
A consequential amendment to the current definition of "sexual conduct" clarifies that it captures sexual intercourse and other physical conduct of a sexual nature, which distinguishes it from an "intimate relationship". To accompany this, a consequential amendment to the current definition of "inmate relationship" omits any reference to "sexual conduct" and further clarifies the distinction between the two terms. In instances where a correctional employee and an inmate have a pre‑existing intimate relationship, it will not be an offence to continue their relationship provided it does not involve sexual conduct and does not pose a risk to the safety, security, good order or discipline of a correctional facility, or compromise the proper administration of a sentence.
It is important to note that the bill does not go as far as providing an exemption from the offence where the correctional employee and inmate were in a pre-existing relationship as a couple. It does not, for example, adopt the approach taken in Queensland where the prohibition on engaging in an intimate relationship with an offender, including sexual conduct, does not apply at all in cases where the staff member and the person were in an intimate relationship before the person became an offender.
Rather, the bill acknowledges that, in rare cases, there may be a pre-existing relationship as a couple between a correctional employee and an inmate, such as a marital, de facto or long-term relationship, and the correctional employee may continue to engage in an intimate relationship with the inmate, for example by exchanging letters of an intimate nature. That will still be permissible provided it does not involve sexual conduct or meet the additional risk threshold test. That approach recognises that such behaviour may or may not pose a risk to the safety, security, order or discipline of a correctional facility, or compromise the proper administration of the inmate's sentence, depending on the circumstances of the case.
The third offence, in new section 236Q (1B) of the Act, applies where a correctional employee engages in sexual conduct or an intimate relationship with a person subject to a community-based order. As per recommendation 4 of the Astill inquiry, there will continue to be a requirement to prove that this behaviour compromised the proper administration of the sentence. This is the case whether or not the correctional employee is in a pre-existing relationship as a couple with the other person.
Finally, the bill also makes a consequential change to section 236Q (2) of the Act. This provision currently provides that a correctional employee is not guilty of an offence if they did not know, while they engaged in sexual conduct or an intimate relationship with an inmate or person subject to a community-based order, that the other person was an inmate or subject to the order. The bill amends the exemption so that it only applies in cases where the correctional employee engages in sexual conduct or an intimate relationship with a person subject to a community-based order and does not know that the person is subject to the order. The provision will no longer refer to inmates because a correctional employee who engages in sexual conduct or an intimate relationship with an inmate in a custodial facility would necessarily know the person is an inmate.
I now turn to another amendment proposed in the bill relating to the definition of "community service work" in the Act. Inmates and offenders subject to a community-based order may be required to undertake community service work as part of their sentence. Community service work is defined in section 3 of the Act as any service or activity approved by the Minister, and includes participation in personal development, educational or other programs.
Whilst activities constituting community service work are defined by the Minister's discretion, there is no requirement to publish or otherwise record what programs the Minister has approved. That ambiguity challenges the integrity of Corrective Services NSW operations. The bill therefore amends section 3 to require the relevant service or activity to, first, be approved by the Minister by order and published in the Gazette and, second, be published on a website administered by Corrective Services NSW. The amendment facilitates greater transparency and understanding of the kinds of activities that could be required to be undertaken if a person is required to complete community service work as part of their sentence.
In the spirit of improving clarity and transparency, the bill also amends provisions relating to warrants of commitment. The Crimes (Sentencing Procedure) Act 1999 provides that, as soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional facility. Section 72 (1) of the Crimes (Administration of Sentences) Act 1999 provides that, while held in custody in a correctional centre, an inmate is taken to be in the custody of the governor of the correctional centre to which the inmate has been committed or, if the inmate has been transferred to another correctional centre, the correctional centre to which the inmate has been transferred.
The current drafting assumes that warrants of commitment specify the correctional centre the offender is committed to. However, in practice, warrants of commitment do not specify the correctional centre the offender is committed to. The bill therefore amends section 72 to insert new subsection (2A) to provide that if a warrant of commitment does not identify the correctional centre an offender must be conveyed to, the Commissioner of Corrective Services NSW may direct the inmate to be committed and conveyed to any correctional centre. That reflects best practice, as the commissioner is most appropriately placed to determine the correctional centre where an inmate should be held. This amendment will operate retrospectively to ensure the validity of the custody arrangements for all inmates committed by a warrant which did not specify a correctional centre.
Finally, the bill proposes several miscellaneous amendments to ensure operational clarity of the regulations that support the Act. I now turn to those amendments. It is important to note that the amendments do not grant new powers or functions to Corrective Services NSW. Rather, the amendments seek to provide the greatest possible clarity to the powers and functions and ensure that provisions in the regulation are appropriately consistent with the regulation-making powers contained in the Act. As the changes are machinery in nature, I will provide examples of the proposed amendments that are more consequential.
Section 79 is the primary source of regulation-making powers in the Act. The regulation-making power under current section 79 (1) (k) allows regulations to be made with respect to the sending and receiving of letters and parcels by inmates, including circumstances in which letters and parcels may be opened for inspection or confiscated. The bill moves key provisions that have been made under this power from the regulation to new part 2, division 7A of the Act, such as those that permit or require correspondence of inmates to be opened and inspected. This reflects the view that it is in the interest of transparency and clarity for provisions that authorise actions with such significant privacy implications to be located in the principal Act.
Further amendments to section 79 (1) (k) will provide clearer guidance as to the types of regulations that can be made regarding inmate correspondence than is currently provided. In another example, the bill introduces clearer powers for regulations to provide for matters such as the persons who may bring inmate property to a correctional centre; the separation, designation and management of inmates; visits to inmates; and the inspection of material taken into a correctional centre by legal practitioners. The amendments also expressly provide that the regulations may authorise persons or bodies to determine, direct, approve or otherwise deal with matters provided for under the regulation-making powers.
The regulation contains numerous provisions made under the regulation-making powers in section 79 that are reliant on an action by a prescribed person or body for their operation. For example, section 79 (1) (i) of the Act allows the regulations to make provision for visits to inmates, and clause 108 of the regulation allows the commissioner to direct that a person be prevented from entering or visiting a correctional centre for reasons including security and the misconduct of a visitor. The amendment to section 79 provides a clear statement that regulations made under the section may include provisions that are dependent on an action by a prescribed person or body for their operation.
Regulation-making powers are beneficial in providing flexibility to respond rapidly to an identified need to adjust the operation of legislation. However, it is important for regulation-making powers to be as clear and precise as possible. The proposed amendments provide greater clarity as to the matters that may be provided for by the regulation in a manner that is consistent with the existing provisions of the Act. The changes provide more transparency as to what the regulations may and may not prescribe, improving confidence in the correctional system.
The bill makes important changes as part of the Government's broader commitment to address the concerns that are present in relation to the New South Wales Corrective Services system and improve clarity in the legislation that supports it. I thank the stakeholders involved for their valuable input on the bill to ensure that the amendments are as effective as they are required to be. Stakeholders include the Public Service Association, Legal Aid NSW, Domestic Violence NSW, the Law Society of NSW and the NSW Bar Association. The amendments proposed are complementary to the wider actions of the Government to restore trust and confidence in the New South Wales corrections system with the urgency and level of commitment required. I am proud to say there is more reform to come. I commend the bill to the House.
Debate adjourned.
