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) (10:20): I move:

That this bill be now read a second time.

I am proud to introduce the inspector of Custodial Services Amendment Bill 2024. The bill amends the Inspector of Custodial Services [ICS] Act 2012 and the Crimes (Administration of Sentences) [CAS] Act 1999 to improve integrity and oversight across Corrective Services NSW. The proposed amendments respond to the findings and recommendations of several recent public reviews and reports that have identified ways to improve transparency and accountability across the Corrective Services NSW system. The Government is acutely aware of the challenges and opportunities for improvement across the system, and this bill plays a crucial role in addressing these challenges and opportunities and instilling public confidence in Corrective Services NSW.

Firstly, the bill responds to the recommendations of the 2021 statutory review of the ICS Act. The bill implements the majority of the recommendations of the statutory review by clarifying and enhancing the role of the Inspector of Custodial Services to improve accountability and oversight of the adult and youth correctional systems. Secondly, the bill responds to findings from the report of the Special Commission of Inquiry into Offending by Former Corrections Officer Wayne Astill at Dillwynia Correctional Centre, which I will refer to as the Astill inquiry. 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, uncovered unacceptable conduct and a lack of accountability 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 of the inquiry, either in full or in principle, and is committed to undertaking the reform necessary to lift standards, deliver safer workplaces for staff members and better protect inmates. The bill responds to the Astill inquiry by introducing amendments that clarify the role of Official Visitors and their ability to resolve complaints independently. This acknowledges commentary in the inquiry that the role of Official Visitors could be clarified to enhance inmates' access and understanding. Thirdly, the bill responds to the NSW Ombudsman's reportInvestigation into inmate discipline in NSW correctional centres, which was tabled in August 2024. It does this by amending the CAS Act to introduce a review mechanism as part of the correctional centre discipline regime. This bill is one of several actions the Government is taking to deliver a more accountable and transparent corrections system. These actions are fundamental in restoring and maintaining public confidence in the system and providing a safer environment for staff members and inmates.

I now turn to the specific provisions of the bill. Much of the bill implements the recommendations of the statutory review of the ICS Act, which was tabled in Parliament in 2021 and was not implemented by my colleagues opposite. The ICS Act sets out the authority, functions and powers of the Inspector of Custodial Services. The inspector provides independent scrutiny of the conditions, treatment of people in custodial facilities, and outcomes in adult and youth custodial settings. The statutory review found that the policy objectives of the ICS Act remained valid, particularly to monitor and oversee custodial centres and services, to scrutinise conditions and to promote transparency. However, it also made 12 recommendations to clarify the ICS Act to improve its operation and help it meet its policy objectives. This bill implements 11 of the 12 recommendations for reform. The one recommendation not explicitly addressed in the bill, recommendation 11, requires an amendment to the Crimes (Administration of Sentences) Regulation 2014. This change will be made ahead of the bill's commencement by proclamation, alongside any other changes to the regulations that are needed to support the legislative reforms.

Recommendation 1 of the review inserts a new objects clause into the ICS Act to assist with the statutory interpretation of the Act and clarify the Act's purpose. The objects in proposed section 2A of the ICS Act are to improve the prospects for the rehabilitation of offenders by improving standards in custodial centres and the provision of custodial services; and to promote the improved treatment of, and improved outcomes for, persons in custody on remand. Recommendation 2 amends section 7 of the ICS Act to clarify the power of the inspector to request information in relation to a custodial service. Currently, this power is reserved to information relating to a custodial centre's operations. The bill amends section 7 to clarify that this power also extends to information and documents relating to a custodial service. This aims to ensure there is no gap in the inspector's powers to examine and review custodial services and require information and documents in respect of a custodial service.

Recommendation 3 found that the inspector should have an express power to conduct private interviews to perform their functions under the Act. The bill inserts new section 8A into the ICS Act to provide an express power for the inspector to conduct private interviews with custodial centre staff members and persons in custody, subject to security and safety considerations, and to the person in custody providing consent. Recommendation 4 amends the Act by requiring the inspector to have regard to the legislative framework regulating custodial services and custodial centres when exercising functions under the Act. This reflects the inspector's current practice of considering operational needs of custodial agencies when exercising their functions. For example, when developing and setting inspection standards for custodial services, the inspector's practice is to consult with custodial agencies to ensure that these standards are informed by the legal and operational landscape that they work in.

Recommendation 5 amends the Act to expand the agencies the inspector can share information with, in the exercise of the inspector's functions. The ICS Act currently enables the inspector to enter into arrangements with Corrective Services NSW, Youth Justice NSW, the Ombudsman and the Independent Commission Against Corruption. The bill expands this so that the inspector can enter into arrangements also with the Health Care Complaints Commission, the Children's Guardian and the Law Enforcement Conduct Commission [LECC], in relation to the exercise of the inspector's functions and certain functions of those bodies. This expansion of information-sharing arrangements is important because the inspector may become aware of matters that could become the basis of an investigation, inquiry or other action by those agencies. Sharing information between the inspector and these agencies would better enable the inspector to monitor inmates' welfare.

As part of this, a new section requiring the inspector to report suspected police misconduct or serious maladministration to the LECC is being introduced. This is important, as the inspector may become aware of conduct that may amount to police misconduct or maladministration during the exercise of functions under the ICS Act. For example, referrals to the LECC may arise out of circumstances where the NSW Police Force provides operational support to a custodial facility during a disturbance. This new provision is consistent with an existing provision in the ICS Act that relates to the inspector being required to make reports about suspected misconduct or maladministration of correctional officers to the ICAC.

Recommendation 6 amends section 16 of the ICS Act to enable all reports to Parliament made by the inspector to be tabled, even if the House is not sitting. This is important in facilitating the timely publication of reports. Recommendation 7 inserts a new section 16A into the ICS Act to give the inspector a discretionary power to require information from a government sector agency or management company about a recommendation made by the inspector, including the reasons why steps have not or are not proposed to be taken.

This is intended to provide greater accountability and transparency in the responses to recommendations. Recommendation 8 highlighted the need to enshrine current practice around public interest considerations against disclosure into legislation. Under section 15 of the Act, the inspector must not disclose information in a report to Parliament if there is an overriding public interest against disclosure. The bill inserts new section 15A into the ICS Act to provide a formal mechanism for the inspector to consult with government sector agencies about public interest considerations. Recommendation 9 inserts a new section 25A into the ICS Act to provide that the inspector is not compellable in certain court and tribunal proceedings to give evidence or produce documents, subject to certain exceptions. These exceptions include, for example, royal commission or special commission of inquiry proceedings.

The ICS Act currently contains various legal protections for information and records received or prepared in the course of the inspector's functions. New section 25A will ensure people in custody, agencies and their staff, and third parties can have confidence that information or documents received or prepared in the course of the inspector's functions remain confidential, and will not be produced or admitted in evidence in court or tribunal proceedings. Recommendations 10 and 11 relate to Official Visitor provisions, which I will turn to shortly. Lastly, recommendation 12 clarifies the role of the Minister responsible for youth detention as it relates to the inspector. The Inspector of Custodial Services exercises functions in both adult correctional centres and youth detention centres, however the ICS Act is administered by the Minister for Corrections. The bill amends the ICS Act to ensure that the Minister responsible for youth detention centres, currently the Minister for Youth Justice, can exercise certain functions relevant to youth detention centres.

This includes referring matters to the inspector and requesting a report from the inspector. The bill also makes a series of consequential amendments to improve clarity and reflect current arrangements. This includes removing a redundant definition of Corrective Services NSW, as it is now a public service executive agency. I now turn to the amendments in the bill relating to the Official Visitor provisions, in response to both the statutory review and comments made in the Astill inquiry. Official Visitors are independent community members who visit adult and youth custodial centres to take inquiries and complaints from people in custody, work with centre staff to resolve complaints, escalate issues that cannot be resolved to the inspector, and monitor the conditions and treatment of people in custody. The Inspector of Custodial Services administers the Official Visitor scheme for both the adult and youth custodial systems.

Currently, there is no single legislative source for the regulation of Official Visitors. Instead, the legislative provisions governing Official Visitors for adult and youth custodial systems are spread across the Children (Detention Centres) Act 1987, Children (Detention Centres) Regulation 2015, as well as the Crimes (Administration of Sentences) Act and associated regulation. The statutory review of the ICS Act found that having provisions governing Official Visitors spread across several pieces of legislation has at times led to confusion around the role and responsibilities of Official Visitors. Subsequently, recommendation 10 of the statutory review provided that consideration be given to consolidating the Official Visitor provisions. The bill therefore inserts new part 2, division 2A of the ICS Act to consolidate all provisions relating to Official Visitors in one location, making arrangements consistent across the adult and youth systems where possible, whilst accounting for the different nature of the adult and youth systems.

The bill inserts new section 27 (1A) into the ICS Act, which enables regulations to be made about Official Visitors, including their functions. The bill also inserts a transitional provision that ensures Official Visitors who were appointed before the amendments commence can continue in their role. The bill proposes further changes to Official Visitor provisions to address concerns identified by the Astill inquiry. The Astill inquiry observed that there was limited understanding among inmates about the role of Official Visitors. This was inhibiting inmates from making complaints and having confidence that their complaints were being taken seriously, limiting the ability of Official Visitors to resolve these complaints. In response to this observation, the bill introduces amendments to clarify the role of Official Visitors and their ability to resolve complaints independently. The bill introduces new section 8H of the ICS Act, which specifies that the main function of the Official Visitor is to consider inquiries and complaints from persons in custody.

This makes clear that hearing concerns from inmates is an Official Visitor's most important function, over and above other functions. New section 8H responds to a finding from the Astill inquiry that inmates have an incorrect perception that Official Visitors are not independent from correctional staff. It does this by clarifying that an Official Visitor, with the consent of a complainant, can refer a complaint to a person the Official Visitor considers appropriate, and that this specifically includes the Inspector of Custodial Services. This makes clear that Official Visitors can refer complaints to independent agencies outside the correctional system, such as the inspector. New section 8H also provides that an Official Visitor may, with the consent of the complainant, notify the custodial centre manager of the complaint or inquiry, and try to resolve it with them. This means that the complainant's consent is needed before an Official Visitor can seek to resolve the matter internally with the custodial centre manager.

Further, the ICS Act currently provides that if more than one Official Visitor is assigned to a correctional centre, each Official Visitor is required to inform other Official Visitors assigned to the centre of the persons interviewed at the centre, and the nature and substance of any complaints or inquiries received. A recurrent theme in the Astill inquiry's findings was the need to uphold the integrity and confidentiality of Official Visitor processes when reporting misconduct. New section 8H therefore also provides that it is discretionary rather than mandatory for an Official Visitor to share complaint and complainant information with another Official Visitor. Further, given that persons in custody can be transferred between centres, the new section allows information to be shared with other Official Visitors in general, rather than only those assigned to the same centre. The Astill inquiry also highlighted that a fundamental issue in the current system is the perceived lack of trust when reporting concerns to an Official Visitor and a fear of retribution and reprisal when doing so.

Currently, section 20 of the ICS Act makes it an offence for a person to take or threaten detrimental action against another person because that other person makes a complaint or provides information or evidence to the Inspector of Custodial Services or a member of staff of the inspector in the exercise of functions under the Act. Crucially, the bill amends this offence to also capture when a person makes a complaint or provides information to an Official Visitor. The Department of Communities and Justice and Corrective Services NSW will develop an implementation plan for communicating these reforms to inmates and correctional staff. I now turn to the part of the bill that responds to a recommendation from the NSW Ombudsman's report on inmate discipline. The inmate disciplinary system deals with inmates who are alleged to have committed a correctional centre offence while in custody. These offences are prescribed in the regulations, and include assaults, drug offences, theft and other property offences, as well as various discipline and good order offences, such as fight, disobey direction, fail to clean yards, and enter other cells.

Some conduct that would constitute a correctional centre offence may also constitute a criminal offence. However, most correctional centre offences are dealt with within the correctional system either because they do not constitute criminal offences or because the inmate disciplinary system provides a fast, efficient and flexible alternative to the criminal justice system in appropriate circumstances. Such circumstances may include where an inmate's conduct constitutes both a criminal and correctional centre offence but is not sufficiently serious to warrant criminal prosecution. Inmate disciplinary processes are administrative in nature, and do not result in criminal charges, convictions or sentences. While the governor of a correctional centre must be satisfied to the criminal standard of "beyond reasonable doubt" in the determination of guilt, the rules of evidence do not apply, and inmates are not entitled to legal representation.

If found guilty of a correctional centre offence, the penalties that can be imposed include reprimand and caution and depriving the inmate of certain privileges. Findings may also have consequences for an inmate beyond the immediate penalty. For example, they can impact decisions made about an inmate's placement, classification and parole. The Ombudsman's report found that some aspects of the administration of inmate discipline across all New South Wales custodial facilities was contrary to the law. For example, there were cases of correctional centre offences not being proven beyond reasonable doubt, or inmates who did not sufficiently understand the nature of disciplinary inquiries or who did not understand English not being provided with assistance. There were also cases where multiple charges were laid or multiple penalties were imposed for the same misconduct, or compensation for property damage was ordered improperly such as where the damage did not result from a correctional centre offence or where the compensation ordered exceeded the permitted amount.

The Ombudsman also found that the lack of review and appeal rights was unjust. The Ombudsman recommended that a comprehensive review of the inmate discipline framework be undertaken, and that any subsequent reform should aim to include legislated review and appeal rights for both findings of guilt and the penalties imposed for correctional centre offences. Corrective Services NSW has commenced a review of the inmate discipline system and its administration, with the long-term objective of significant reform to address the issues raised in the Ombudsman's report. The bill facilitates this by inserting new section 65B into the CAS Act to provide an internal review mechanism. This includes any compensation that an inmate has been ordered to pay for property damage arising from a correctional centre offence.

The commissioner will also be able to review such a decision on the commissioner's own initiative. This is important because an internal review of inmate discipline decisions conducted by Corrective Services confirmed many of the Ombudsman's findings, but there is no lawful authority under the existing legislation that allows Corrective Services to remedy incorrect disciplinary decisions. If the commissioner undertakes a review, the commissioner will have the option of conducting a hearing into the matter. However, this will not be a requirement. On review, the commissioner will be able to confirm or vary the initial decision, or set aside the decision and substitute it with a new decision.

The bill also provides the commissioner with the authority to direct that any remedial action that the commissioner considers appropriate be taken to give effect to the decision on the review. The exercise of this authority is discretionary so that there is no obligation to order remedial actions where none are practicable, such as where inmate privileges were withdrawn as a penalty and that penalty has already been served. New section 65B will provide inmates with the ability to initiate reviews and allow Corrective Services to address any past discipline decisions it has identified as being incorrect, unlawful or otherwise in need of correction without awaiting the completion of the review of the inmate discipline system and the passage of any subsequent reforms.

The bill makes important and immediate changes to the laws that govern Corrective Services NSW. It looks to restore confidence in the operations and integrity of the system, and allows the Government to fulfil its responsibilities in response to the important public reports and reviews that have taken place. I thank the stakeholders who had the opportunity to provide their valuable input on the bill. Stakeholder input ensures that the bill works effectively and achieves its intended goals. I thank the Public Service Association, the Inspector of Custodial Services, the NSW Ombudsman, Legal Aid NSW, the New South Wales Bar Association, the Law Society of New South Wales, Domestic Violence NSW and all stakeholders who contributed to the statutory review of the ICS Act. The Government is absolutely committed to delivering a more accountable and transparent corrections system. The bill provides a crucial element of this change. I commend the bill to the House.

Debate adjourned.