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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 66
As received from the Legislative Council and read a first
time, 7 December 2004
South Australia
Correctional
Services (Miscellaneous) Amendment Bill 2004
A Bill For
An
Act to amend the Correctional Services Act 1982.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of
Correctional Services Act 1982
4 Amendment of section 4—Interpretation
5 Amendment of section 27—Leave of
absence from prison
6 Insertion of section 27A
27A Interstate leave of absence
7 Amendment of section 29—Work by
prisoners
8 Amendment of section 31—Prisoner
allowances and other money
9 Amendment of section 33—Prisoners'
mail
10 Amendment of section 37—Search of
prisoners
11 Substitution of section 37AA
37AA Drug testing of prisoners
12 Amendment of section 37A—Release on
home detention
13 Amendment of section 52—Power of
arrest
14 Amendment of section 85—Execution of
warrants
15 Substitution of sections 85A and 85B
85A Exclusion of persons from
correctional institution
85B Power of search and arrest of
non-prisoners
16 Amendment of section
89—Regulations
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Correctional Services
(Miscellaneous) Amendment Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Correctional Services Act 1982
4—Amendment of section 4—Interpretation
(1) Section 4—after the definition of the
Advisory Council insert:
alcotest means a test, by means of apparatus approved for the purpose of
conducting alcotests under the Road Traffic Act 1961, by which the
presence of alcohol in the blood of a person who exhales into the apparatus is
indicated;
analyst has the same meaning as in the Controlled Substances
Act 1984;
biological sample means a sample of urine, saliva or sweat;
(2) Section 4—delete the definition of drug
and substitute:
drug means—
(a) alcohol;
or
(b) a
substance that is a prescription drug, a drug of dependence or a prohibited
substance under the Controlled Substances Act 1984;
drug test means an alcotest or a prescribed procedure; and drug
testing has a corresponding meaning;
(3) Section 4—after the definition of manager
insert:
nearest police station, in relation to a person who has been
arrested without warrant under this Act, means the police station nearest to
the place of arrest at which facilities are continuously available for the care
and custody of the person arrested;
(4) Section 4—after the definition of police
prison insert:
prescribed procedure means a procedure, prescribed by regulation, consisting of
the taking of a biological sample from a person for analysis for the purpose of
ascertaining the presence of a drug in the body of the person from whom the
sample was taken;
5—Amendment of section 27—Leave of absence from prison
(1) Section 27—after subsection (1) insert:
(1a) However,
a prisoner may not be granted leave to be absent from the place in which he or
she is being detained in circumstances set out in the regulations.
(2) Section 27(2)—after "one or more"
insert:
officers or
(3) Section 27(3)—delete subsection (3) and
substitute:
(3) The
Chief Executive Officer may, by written order, revoke a leave of absence
granted under this section, or vary or revoke any of the conditions to which it
is subject or impose further conditions.
(4) Section 27(4)—after "police force or
any" insert:
officer or
After section 27 insert:
27A—Interstate
leave of absence
(1) The following provisions apply in relation
to a request under section 27 for leave of absence to be taken outside of this
State:
(a) the
leave may only be granted in respect of a participating State;
(b) the
period of leave cannot exceed 7 days, but successive grants of leave can be
made;
(c) the
Chief Executive Officer must give written notice of the leave to—
(i) the
chief officer of police and the corresponding chief executive in the State in
which the leave will be taken; and
(ii) the
chief officer of police in any other State through which the prisoner will have
to travel by land;
(d) the
prisoner remains in the custody of the Chief Executive Officer despite being
outside the State.
(2) The following provisions apply in relation
to an interstate prisoner who has been granted leave of absence under a
corresponding law:
(a) an
order or permit under a corresponding law appointing an escort for the prisoner
has effect, according to its terms, while the prisoner is in this State, except
for any period during which the prisoner is detained in a correctional
institution;
(b) if
the prisoner is in the custody of an escort and requires overnight
accommodation while in this State, the prisoner may be detained in a
correctional institution for that period, and the order or permit for the leave
is sufficient authority for that detention (whether or not the leave is to be
taken in this State);
(c) if,
while the prisoner is in this State, the prisoner escapes or attempts to escape
from custody, breaches a condition to which the leave is subject or is
otherwise unlawfully at large, the prisoner may be arrested, without warrant,
by—
(i) an
officer or employee of the Department; or
(ii) a
member of the police force; or
(iii) the
prisoner's escort (if any),
and taken to the nearest police station;
(d) a
prisoner who is arrested under paragraph (c) must be brought before a
magistrate within 2 working days of the day of arrest and may be detained in a
correctional institution until that occurs;
(e) the
magistrate may, if he or she thinks it appropriate in such a case, order that
the prisoner—
(i) be
returned by the prisoner's escort to the State in which the leave was granted;
or
(ii) be
delivered into the custody of an escort for the purposes of being returned to
that State,
as the case may require (and no right of appeal lies against such
an order);
(f) if
an order is made under paragraph (e)(ii)—
(i) the
prisoner may be detained in a correctional institution until—
(A) the
order is executed; or
(B) the
expiration of 7 days from the making of the order,
whichever occurs first; and
(ii) the
order, if not executed, expires at the end of that 7 day period;
(g) the
prisoner will, while detained in a correctional institution under this section,
be taken to be a prisoner for the purposes of this Act.
(3) In this section—
corresponding chief executive, in relation to a participating State,
means the officer responsible for the administration of prisons in that State;
corresponding law means a law prescribed by regulation to be a corresponding
law for the purposes of this section;
escort, in relation to a prisoner or an interstate prisoner, means a
person authorised or appointed under this Act or the law of the participating
State to have custody of the prisoner for the purposes of leave of absence, or
return from leave of absence, as the case may be;
interstate prisoner means a person subject to detention in a participating
State who has been granted leave of absence under a corresponding law;
participating State means a State in which a corresponding law is in force;
State means a State or Territory of the Commonwealth.
7—Amendment of section 29—Work by prisoners
Section 29—after subsection (4) insert:
(5) A
prisoner in a correctional institution is not entitled to perform any other
remunerated or unremunerated work of any kind, whether for the benefit of the
prisoner or any other person, unless the prisoner has the permission of the
manager to do so.
8—Amendment of section 31—Prisoner allowances and other money
Section 31(2)—delete "pursuant to
this Division" and substitute:
under this Division (not being work performed under section 29(5))
9—Amendment of section 33—Prisoners' mail
Section 33(3)—after paragraph (i) insert:
(j) material
relating to, or that constitutes, work by the prisoner that the prisoner is not
authorised to perform.
10—Amendment of section 37—Search of prisoners
(1) Section 37(1)(c)—delete "specimen of
his or her urine" and substitute:
biological sample
(2) Section 37—after subsection (1) insert:
(1a) The manager of a correctional institution
may also cause a prisoner's belongings to be searched if, for the purpose of
detecting items prohibited by the regulations, the manager—
(a) proposes
that the belongings of all prisoners within the institution, or a part of the
institution, be searched; or
(b) causes
the random selection of prisoners from the whole, or a part, of the institution
for the purposes of such a search and the prisoner falls within the selection.
(3) Section 37—after subsection (5) insert:
(6) The annual report submitted under this Act
by the Chief Executive Officer in respect of a financial year must include
particulars of—
(a) the
number of searches conducted under subsection (1a) in respect of each
correctional institution during the year; and
(b) the
number and general description of items prohibited by the regulations detected
in the institution during those searches.
11—Substitution of section 37AA
Section 37AA—delete the section and
substitute:
37AA—Drug testing
of prisoners
(1) The manager of a correctional institution
may require a prisoner to undergo a drug test in any of the following
circumstances:
(a) on
the initial admission of the prisoner to the institution;
(b) on
the prisoner returning to the institution after being absent;
(c) if
the manager reasonably suspects that the prisoner has unlawfully used a drug;
(d) if,
for the purpose of ascertaining the incidence of unlawful drug use in the
correctional institution, the manager—
(i) proposes
that all prisoners within the institution, or a part of the institution,
undergo a drug test; or
(ii) causes
the random selection of prisoners from the whole, or a part, of the institution
to undergo a drug test and the prisoner falls within the selection;
(e) in
any other circumstance that the Chief Executive Officer thinks fit.
(2) For the purposes of this Act, a prisoner uses
a drug if the prisoner—
(a) consumes
or smokes, or administers to himself or herself, the drug; or
(b) permits
another person to administer the drug to him or her.
(3) In proceedings for an offence against this
Act or any other Act—
(a) if
the proceedings relate to the unlawful use of alcohol—a certificate apparently
signed by an authorised officer and certifying—
(i) that
the prisoner named in the certificate submitted to an alcotest on a day and at
a time stated in the certificate; and
(ii) that
the alcotest was carried out in conformity with the requirements of this Act
using apparatus of a kind approved by the Governor under the Road Traffic
Act 1961 for the purposes of carrying out alcotests; and
(iii) that
the alcotest produced a reading of a specified level of alcohol in the
prisoner's blood,
is, in the absence of proof to the contrary, proof of the matters
so certified;
(b) if
the proceedings relate to the unlawful use of any other drug—
(i) a
certificate apparently signed by an authorised officer and certifying—
(A) that
the prisoner named in the certificate submitted to a specified prescribed
procedure on a day and at a time stated in the certificate; and
(B) that
the procedure was carried out in conformity with the requirements of this Act;
and
(C) that
the biological sample obtained as a result of the procedure was assigned a
specified identifying number; and
(ii) a
certificate apparently signed by an analyst and certifying that the drug
specified in the certificate was found to be present in the biological sample
assigned that number,
is, in the absence of proof to the contrary, proof of the matters
so certified.
(4) In this section—
authorised officer means an officer or employee of the Department authorised
by the Chief Executive Officer for the purposes of this section.
12—Amendment of section 37A—Release on home detention
Section 37A(1a) and (2)—delete subsections
(1a) and (2) and substitute:
(2) The exercise by the Chief Executive Officer
of the discretion under subsection (1) is subject to the following limitations:
(a) a
prisoner who is serving or is liable to serve a sentence of indeterminate
duration and has not had a non-parole period fixed cannot be released on home
detention;
(b) a
prisoner cannot be released on home detention unless—
(i) in
the case of a prisoner in respect of whom a non-parole period has been fixed—the
prisoner has served at least one-half of the non-parole period;
(ii) in
any other case—the prisoner has served at least one-half of the prisoner's
total term of imprisonment;
(c) the
release of a prisoner on home detention cannot occur earlier than 1 year before—
(i) in
the case of a prisoner in respect of whom a non-parole period has been fixed—the
end of the non-parole period;
(ii) in
the case of a prisoner in respect of whom a non-parole period has not been
fixed but whose total term of imprisonment is more than 1 year—the day on which
the prisoner would otherwise be released from prison under this Act;
(d) any
limitations determined from time to time by the Minister, which may include,
without limitation, the exclusion of prisoners sentenced for a specified class
of offence or any other class of prisoners from release on home detention.
13—Amendment of section 52—Power of arrest
(1) Section 52(1)—After "An" insert:
officer or
(2) Section 52(1)(a)—after "the
officer" insert:
or employee
(3) Section 52(1)(b)—after "any person who
the" insert:
officer or
(4) Section 52(2)—after "An" insert:
officer or
14—Amendment of section 85—Execution of warrants
Section 85—after "An" insert:
officer or
15—Substitution of sections 85A and 85B
Sections 85A and 85B—delete the sections
and substitute:
85A—Exclusion
of persons from correctional institution
(1) Despite any other provision of this Act—
(a) if
the manager of a correctional institution believes on reasonable grounds that a
person lawfully attending the institution in any capacity (other than a member
of the staff of the institution) is interfering with or is likely to interfere
with the good order or security of the institution, the manager—
(i) may
cause the person to be refused entry to or removed from the institution, using
only such force as is reasonably necessary for the purpose; and
(ii) may,
in the case of a person who visits or proposes to visit a prisoner under
section 34, by written order, exclude the person from the institution until
further order or for a specified period; and
(b) if
the Chief Executive Officer believes on reasonable grounds that a person who
visits or proposes to visit a prisoner in a correctional institution under
section 34 is interfering with or is likely to interfere with the good order or
security of that or any other correctional institution, the Chief Executive
Officer may, by written order, direct that the person be excluded from a
specified correctional institution, all correctional institutions of a
specified class, or all correctional institutions, until further order or for a
specified period.
(2) An
order under subsection (1)(a) may be varied or revoked by the manager of
the correctional institution and an order under subsection (1)(b) may be
varied or revoked by the Chief Executive Officer.
(3) The
manager of a correctional institution may cause any person who is attempting to
enter or is in the institution in contravention of an order under this section
to be refused entry to or removed from the institution, using only such force
as is reasonably necessary for the purpose.
85B—Power of
search and arrest of non-prisoners
(1) The manager of a correctional institution
may—
(a) cause
any person who enters the institution to submit, subject to the person's
consent, to a limited contact search, and to having his or her
possessions searched, for the presence of prohibited items; or
(b) if
there are reasonable grounds for suspecting that a person entering or in the
institution is in possession of a prohibited item, cause the person and his or
her possessions to be detained and searched; or
(c) if
there are reasonable grounds for suspecting that a vehicle entering or in the
institution is carrying a prohibited item, cause the vehicle to be detained and
searched.
(2) If
a person does not consent to a limited contact search, the manager of the
correctional institution may cause the person to be refused entry to or removed
from the institution, using only such force as is reasonably necessary for the
purpose.
(3) Failure
of a person to consent to a limited contact search does not of itself
constitute grounds for suspecting that the person is in possession of a
prohibited item.
(4) The following provisions apply to a limited
contact search:
(a) the
person cannot be required to remove any clothing or to open his or her mouth,
and nothing may be introduced into an orifice of the person's body;
(b) any
direct contact with the person's flesh that is necessary for the purpose of the
search must be minimal and within the bounds of propriety;
(c) the
person may be required to adopt certain postures or to do anything else
reasonably necessary for the purposes of the search and, if the person does not
comply with such a requirement, the manager may cause the person to be removed
from the institution, using only such force as is reasonably necessary for the
purpose;
(d) the
search must be carried out expeditiously and undue humiliation of the person
must be avoided.
(5) The following provisions apply to a search
under subsection (1)(b):
(a) the
person may be required—
(i) to
remove his or her outer clothing (including footwear and headwear) but no other
clothing; or
(ii) to
open his or her mouth (but force cannot be applied to open the person's mouth);
or
(iii) to
adopt certain postures; or
(iv) to
submit to being frisked; or
(v) to
do anything else reasonably necessary for the purposes of the search,
and, if the person does not comply with such a requirement, the
manager may cause the person to be removed from the institution, using only
such force as is reasonably necessary for the purpose;
(b) nothing
may be introduced into an orifice (including the mouth) of the person's body;
(c) at
least 2 persons, apart from the person being searched, must be present at all
times during the search;
(d) the
search must be carried out expeditiously and undue humiliation of the person
must be avoided.
(6) The following provisions apply to a search
under subsection (1)(c):
(a) the
driver of the vehicle may be required to do anything reasonably necessary for
the purposes of the search;
(b) if
the driver does not comply with a requirement made under paragraph (a),
the manager may cause the driver and the vehicle to be refused entry to or
removed from the institution, using only such force as is reasonably necessary
for the purpose.
(7) If a prohibited item is found as a result
of a search under this section, or a person fails to comply with a requirement
lawfully made for the purposes of a search under this section—
(a) the
manager may cause the person or the driver of the vehicle, as the case may be,
to be handed over into the custody of a police officer as soon as reasonably
practicable and to be kept in detention until that happens; and
(b) the
item may be kept as evidence of an offence or otherwise dealt with in the same
manner as a prohibited item under section 33A may be dealt with.
(8) If
the officer or employee who carries out a search of a person under this section
suspects on reasonable grounds that a prohibited item may be concealed on or in
the person's body, the manager may cause the person to be handed over into the
custody of a police officer as soon as reasonably practicable and to be kept in
detention until that happens.
(9) On
a person being detained under subsection (7) or (8), the manager must
immediately cause a police officer to be notified.
(10) Despite
the preceding provisions of this section, if a person or vehicle may be
detained under this section for the purposes of being searched, the manager
may, instead, cause the person or vehicle to be refused entry to or removed
from the institution, using only such force as is reasonably necessary for the
purpose.
(11) The annual report submitted under this Act
by the Chief Executive Officer in respect of a financial year must include the
following particulars:
(a) the
number of persons detained under subsection (7) during the year and the
duration of each such detention; and
(b) the
number of persons detained under subsection (8) during the year and the
duration of each such detention.
(12) This
section does not apply to a person who is a prisoner in the correctional
institution.
(13) In this section—
prohibited item means an item—
(a) that
is a prohibited item for the purposes of section 51; and
(b) permission
for the introduction of which into the correctional institution has not been
given by the manager.
16—Amendment of section 89—Regulations
Section 89(2)(ea)—delete paragraph (ea)
and substitute:
(ea) for
the purposes of section 37AA, including regulations—
(i) prescribing
procedures for drug testing; and
(ii) regulating
the collection of biological samples from prisoners for the purposes of drug
testing; and
(iii) prescribing
the directions that can be given to a prisoner for the purpose of conducting an
alcotest or collecting and authenticating a biological sample; and
(iv) prescribing higher maxima for the penalties prescribed by sections 43 and 44 if a prisoner breaches regulations made under this subsection, provided that those higher maxima do not exceed by more than 3 times the maxima prescribed in those sections; and