Aileen MacDonald

Inspector of Custodial Services Amendment Bill 2024

Hansard ID:

HANSARD-1820781676-98607

Hansard session:

Second Reading Speech

The Hon. MARK BUTTIGIEG (20:22): On behalf of the Hon. Penny Sharpe: 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 Act 2012, which I will refer to as the ICS Act, and the Crimes (Administration of Sentences) Act 1999, which I will refer to as the CAS Act, 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 part in addressing these and in instilling public confidence in Corrective Services NSW.

First, 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. Second, 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 Mr Astill and the institutional response to the offending. The inquiry, led by his Honour Justice Peter McClellan, AM, KC, uncovered unacceptable conduct and a lack of accountability that was apparent both at Dillwynia Correctional Centre and across the entire New South Wales corrections system.

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 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 should be clarified to enhance inmate access and understanding. Third, the bill responds to the NSW Ombudsman report entitled Investigation 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 for restoring and maintaining public confidence in the system and providing a safer environment for staff and inmates.

I seek leave to have the remainder of the second reading speech incorporated in Hansard.

Leave granted.

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 those 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:

a.improve the prospects for the rehabilitation of offenders by improving standards in custodial centres and the provision of custodial services, and

b.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 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 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 the inspector can also enter into arrangements with the Health Care Complaints Commission, the Children's Guardian and the Law Enforcement Conduct Commission or "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.

Information sharing between the inspector and these agencies would better enable the inspector to monitor inmate 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.

The 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 enquiries 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 CAS 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, subsection (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 where 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 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 a new decision.

The bill also provides the commissioner with the authority to direct that any remedial action 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.

Proposed 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.

This 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 want to 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. Thank you to:

The Public Service Association

The Inspector of Custodial Services

The NSW Ombudsman

Legal Aid NSW

The NSW Bar Association

The Law Society of NSW

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.

This bill provides a crucial element of this change.

I commend the bill to the House.

Second Reading Debate

The Hon. AILEEN MacDONALD (20:26): On behalf of the Opposition, I speak on the Inspector of Custodial Services Amendment Bill 2024. The Opposition supports the bill and the efforts to uphold the integrity, transparency and accountability of New South Wales custodial services. As shadow Minister for Youth Justice, I particularly welcome the provisions that clarify the role and functions of the Inspector of Custodial Services and strengthen the appointment, assignment and responsibilities of Official Visitors in both correctional centres and youth justice centres. These reforms are critical to ensuring public confidence in our custodial institutions, particularly those that house some of our most vulnerable young people.

The bill also implements recommendation 12 of the statutory review, which clarifies the role of the Minister for Youth Justice in overseeing youth detention centres. That ensures the Minister has a direct role in referring matters to the inspector and requesting reports, and it is an important recognition of the distinct nature of Youth Justice within the broader custodial system. The bill is a necessary response to multiple reviews, including the 2021 statutory review of the Inspector of Custodial Services Act and the Special Commission of Inquiry into Offending by Former Corrections Officer Wayne Astill at Dillwynia Correctional Centre. Those reports underscored the urgent need for better oversight mechanisms, stronger accountability frameworks and clearer lines of authority for custodial inspections and independent complaint resolution. The bill enacts 11 of the 12 recommendations from the statutory review.

Those include recommendation 1, to insert an objects clause to provide clarity on the purpose of the Act, reinforcing its focus on improving rehabilitation prospects and upholding custodial standards; recommendation 2, to expand the inspector's power to request information and documents, ensuring greater access to custodial service records; recommendation 3, to grant the inspector the ability to conduct private interviews with detainees and custodial staff, provided it does not compromise security or safety; recommendation 4, to ensure the inspector operates with regard to the legislative frameworks regulating custodial services; and recommendation 5, to strengthen interagency cooperation by allowing the inspector to enter into arrangements with the Children's Guardian, Health Care Complaints Commission and the Law Enforcement Conduct Commission [LECC]. Importantly, the bill also mandates that the inspector report cases of officer misconduct or serious maladministration to the LECC. Recommendation 6 is to allow reports to be tabled in Parliament at any time, including when Parliament is not sitting, to improve transparency and accountability.

One of the most significant reforms, recommendation 10, relates to Official Visitors, who play a crucial role in independent oversight. As stated earlier, I welcome recommendation 12, which strengthens the role of the Minister for Youth Justice in relation to youth detention centres. The bill ensures that the Minister can exercise oversight functions relevant to Youth Justice settings, recognising that youth detention requires a tailored and rehabilitative approach. The bill delivers important improvements to the governance and accountability of custodial services in New South Wales. It strengthens independent oversight, clarifies the role of the Inspector of Custodial Services, enhances the complaint resolution framework for detainees and reinforces the Minister for Youth Justice's authority over youth detention centres. While the bill represents a step forward, our focus must remain on ensuring that reforms are implemented effectively. Young people in detention are among the most vulnerable in our justice system, and we must ensure that they are treated fairly, that their rights are protected and that their rehabilitation remains the primary goal. I commend the bill to the House.

Ms SUE HIGGINSON (20:30): I speak on behalf of The Greens in support of the Inspector of Custodial Services Amendment Bill 2024, which amends the Inspector of Custodial Services Act 2012. I indicate that The Greens will move a number of amendments during Committee of the Whole. The bill seeks to ensure better protections for incarcerated individuals and the safety of all those who work in correctional centres. As I have said in this place before, New South Wales prisons are among the worst in the world. Currently, the conditions in many of the State's correctional centres are the stuff of nightmares. I have witnessed men lying on concrete floors in concrete boxes that are three metres by three metres, with no blanket, no pillow and no daylight, crippled with pain and screaming for help, with no-one going to their aid. That is not unusual in some of our prisons.

Material conditions in prisons matter. Without proper oversight of those systems, inmates suffer at the hands of a serious power imbalance, such as what we witnessed in the serial offending of former prison guard Wayne Astill. The function of the Inspector of Custodial Services is of paramount importance. As it stands, the inspector and her Official Visitors are some of the only people in the State who get to see behind the curtain of what is going on in Corrective Services NSW and the State's facilities. The inspector provides critical independent scrutiny of the conditions, treatment and outcomes for adults and young people in custody and ensures that policymakers, such as members of this place, remain informed of what goes on in those impenetrable and dark places. People should leave prisons better than when they went in. If that is not the aim, we need to rethink what is happening in New South Wales. Sadly, that is not the case in this State: People do not come out better than when they went in. If they do, it is by chance.

The inspector is one of the few people who is able to hold Corrective Services accountable. For that reason, the bill and The Greens' amendments are critical to raising the bar on the whole-of-systems issues that Corrective Services is plagued by. It is an incredibly difficult and challenging environment. I say that in no uncertain terms. It is incredibly challenging for everybody who comes into contact with the corrective systems and facilities in New South Wales. We can and must do much better. We have been in a relatively dark time when it comes to Corrections, but there are many champions across the State. I know that this Government has a willingness to shine a light to improve and change that. We are talking about tens of thousands of human beings that deserve to be given a second, third or fourth chance to be rehabilitated, fix the errors of their ways and come out much better than when they went in. We invest precisely to get that outcome.

Throughout the Astill inquiry, led by Peter McClellan, AM, KC, we heard time and time again that a toxic culture led to the offending and cover-ups by Corrective Services officers of the serial abuse of female inmates at Dillwynia Correctional Centre. It is going to take a lot more than the passage of a bill through this place—some tweaks and changes to the black letters on the white paper that we pass in this place. From my interactions with the many great people working in the system, I know that this is a serious moment. People are seizing the moment to try to improve the system to change the culture and ensure that we do not see what we now know happened over a long period of time.

Make no mistake: It will take time for that toxic culture to be rid from within correctional centres. I am glad that the Government is taking this small step—and the step it took last week with the changes to the Crimes (Administration of Sentences) Act 1999—in what will hopefully be a long line of reforms to set Corrective Services right. By enhancing the Inspector of Custodial Services Act and the powers of the inspector, and by making the requirements of the inspector more certain, clear, operational and enforceable, we can ensure that there is more oversight and therefore more accountability within correctional systems in New South Wales. I send a strong message of hope that this second bill is not our business done. There is more work to be done, and I trust that the Government is doing that work.

The Hon. Dr SARAH KAINE (20:37): I speak in support of the Inspector of Custodial Services Amendment Bill 2024. The bill amends the Inspector of Custodial Services Act 2012, or the ICS Act, and the Crimes (Administration of Sentences) Act 1999, or the CAS Act, to improve integrity and oversight in Corrective Services NSW. The amendments in the bill implement the recommendations of several recent public reviews and reports into Corrective Services NSW that identified ways to improve transparency and accountability across the system. First, the bill implements 11 of the 12 recommendations of the statutory review of the ICS Act, which was tabled in October 2021. One recommendation requires an amendment to the regulations and will be implemented ahead of the bill's commencement by proclamation, alongside any other changes to the regulations that are needed to support the legislative reforms.

Second, the bill introduces amendments relating to the Official Visitors scheme in response to commentary in the report of the Special Commission of Inquiry into offending by former Corrections Officer Wayne Astill at Dillwynia Correctional Centre, or the Astill inquiry, released in March 2024. Third, the bill introduces an internal review mechanism for inmate discipline decisions into the CAS Act in response to the NSW Ombudsman's report on inmate discipline, tabled in August 2024. The bill forms part of the Government's wider reform package to lift standards, deliver better workplaces for staff and protect inmates across Corrective Services NSW. Those actions are fundamental to restoring public confidence in the system and providing a safer environment for staff and inmates.

I turn now to enhancing the role of the Inspector of Custodial Services. The inspector provides independent scrutiny of the conditions and treatment of people in custodial facilities and outcomes in adult and youth custodial centre settings. The inspector also oversees the Official Visitors Program. Official Visitors are independent community members who act as independent observers of youth and adult custodial facilities. The ICS Act sets out the authority, functions and powers of the inspector. A statutory review of the ICS Act commenced in 2019, with the report tabled in Parliament in October 2021. The review found that the policy objectives of the ICS Act remained valid. However, it made 12 recommendations to improve the operation of the Act and help it meet its policy objectives. The Government acknowledges the critical role that the inspector plays in monitoring and improving standards within New South Wales custodial facilities. By implementing the recommendations of the statutory review of the ICS Act, the bill will improve the efficient operation of the Act and clarify the role and functions of the inspector.

The amendments include inserting a new objects clause into the Act to increase understanding of the role of the inspector and to promote the improved treatment of, and improved outcomes for, persons in custody, including those on remand; clarifying that the inspector's power to request information and documents from staff extends to information and documents concerning a custodial service; providing an express power for the inspector to conduct private interviews with staff and persons in custody, subject to security and safety considerations, and to the person in custody providing consent; expressly recognising that the inspector must have regard to the legislative framework regulating custodial services and centres in the exercise of their functions; and expanding the agencies the inspector can share information with in the exercise of the inspector's functions to also include the Health Care Complaints Commission, the Children's Guardian and the Law Enforcement Conduct Commission.

The amendments also include enabling all reports to Parliament made by the inspector to be tabled, even if the House is not sitting; introducing a discretionary power for the inspector to require information from relevant agencies about responses to recommendations, including the reasons why steps have not or are not proposed to be taken; providing a formal mechanism for the inspector to consult with government sector agencies about public interest considerations relating to information contained in reports; expressly providing that the inspector is not compellable to give evidence or produce documents in certain court and tribunal proceedings, subject to certain exceptions, including royal commission or special commission of inquiry proceedings; and ensuring that the Minister responsible for youth detention centres, currently the Minister for Youth Justice, can exercise certain functions under the Act relevant to youth detention centres.

Official Visitors are independent community members who visit adult and youth custodial centres to take inquiries and complaints from inmates and young people; work with centre staff to resolve inquiries and complaints from inmates and young people if required; escalate issues that cannot be resolved locally; and monitor the conditions and treatment of inmates and young people. Official Visitors also submit reports which assist the Inspector of Custodial Services to identify broader issues within the custodial environment. The Government is committed to ensuring that the Official Visitors Program operates efficiently to ensure the welfare and safety of inmates and detainees in New South Wales custodial centres. The bill does that by consolidating all provisions relating to the Official Visitors Program into the ICS Act, as per recommendation 10 of the statutory review. That streamlines oversight arrangements so that the Official Visitors Program is couched within the same legislative framework as the inspector.

The bill also makes important changes to Official Visitor provisions to address concerns identified by the Astill inquiry. The Astill inquiry found that there was limited understanding among inmates about the role of Official Visitors, which prohibited them from making complaints and having the confidence that their complaints were being taken seriously; there was an incorrect perception that Official Visitors are not independent from correctional staff; and there was a perceived lack of trust when reporting misconduct concerns to an Official Visitor and a fear of retribution and reprisal when doing so.

The bill addresses those findings by making amendments to the ICS Act to clarify the role of Official Visitors and enhance their ability to resolve complaints independently. Those include specifying that the main function of the Official Visitor is to consider inquiries and complaints from inmates and detainees, which emphasises that the Official Visitor scheme is designed to protect welfare and safety of inmates and detainees; 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, which makes it explicit that Official Visitors can refer complaints to independent agencies outside the correctional system; extending an existing protection against retribution for a person who gives information to the inspector or the inspector's staff to also apply to a person who gives information to an Official Visitor; and providing that it is discretionary rather than mandatory for an Official Visitor to share complaint and complainant information with another Official Visitor. Those are important reforms that aim to provide inmates with greater trust and confidence in the complaints handling processes.

The inmate discipline system is critical for ensuring the safety, security and good order of correctional facilities. The NSW Ombudsman's report on inmate discipline found that some aspects of the administration of inmate discipline across all New South Wales custodial facilities was contrary to law, while others were unreasonable, unjust and otherwise wrong. The Ombudsman recommended introducing legislated review and appeal rights for both findings of guilt and penalties, as their absence was inherently unfair. The bill implements that recommendation by amending the CAS Act to create an internal review mechanism for decisions made under the correctional centre discipline provisions. That amendment will improve the fairness of the discipline system.

The bill will provide an express power for the Commissioner of Corrective Services NSW to review inmate discipline decisions, whether on application by an inmate or on the commissioner's own initiative. If the commissioner undertakes a review, the commissioner will be able to confirm or vary the initial decision, or set aside the decision and substitute a new decision. This reform is an important first step in the Government's response to the serious issues raised by the Ombudsman about the correctional centre discipline regime. Corrective Services NSW has also commenced a review of the inmate discipline system and its administration with the long‑term objective of significant reform to improve the fairness and effective operation of the disciplinary system.

The proposed reforms in the bill represent the Government's commitment to ensuring the transparent and effective operation of the corrections system. The amendments will clarify and enhance the role of the inspector and improve the operation of the Official Visitors Program. The bill also enhances the fairness of the inmate discipline system by introducing an internal review mechanism. In introducing the bill, the Government upholds its commitment to making the necessary changes to rebuild trust in the corrections system and ensure a safer environment for staff and inmates in New South Wales.

The Hon. MARK BUTTIGIEG (20:46): On behalf of the Hon. Penny Sharpe: In reply: I thank honourable members for their contributions to debate on the Inspector of Custodial Services Amendment Bill 2024, including the Hon. Aileen McDonald, Ms Sue Higginson and the Hon. Dr Sarah Kaine. I welcome the support for the bill across the Parliament. The New South Wales Government is committed to improving integrity, oversight and transparency in the New South Wales correctional system. The bill is part of a comprehensive suite of reforms we are progressing to achieve that change. The bill strengthens the role of the Inspector of Custodial Services by amending the Inspector of Custodial Services Act 2012 to implement the legislative recommendations from the 2021 statutory review of the Act. Those amendments improve and clarify the role of the inspector and enhance the rigour and efficiency of the inspector's reporting processes and outcomes.

The bill also addresses concerns raised in the report of the Special Commission of Inquiry into offending by former Corrections Officer Wayne Astill at Dillwynia Correctional Centre in relation to Official Visitors by clarifying the role and independence of Official Visitors. The bill further responds to the Astill inquiry by extending the existing offence, protecting complainants to the Inspector of Custodial Services or a member of the inspector's staff against retribution to also capture persons who make a complaint to an Official Visitor. Additionally, the bill takes a critical step in addressing concerns raised in the Ombudsman's report on the investigation into inmate discipline in New South Wales correctional centres by amending the Crimes (Administration of Sentences) Act 1999 to introduce a review mechanism as part of the correctional centre discipline regime.

The report found a system failure across all correctional centres to follow the requirements of the legislation and the relevant policies in relation to inmate discipline. In many cases, that led to unjust outcomes and potential unlawful decision. The Ombudsman also considered that the absence of any review mechanism was inherently unfair. The bill therefore implements the new review mechanism to improve the fairness and effective operation of the inmate discipline system. I am glad that both the Opposition and The Greens have acknowledged the need to restore public confidence and improve operations in the corrections system, and I thank Ms Sue Higginson for her passion in seeing reforms in that space. I note that Ms Sue Higginson will move amendments to the bill, and I foreshadow that the Government will support some of those amendments.

I acknowledge that the majority of the 10,000 staff of Corrective Services act appropriately in the workplace and perform a challenging job to a high standard, but the Government does not deny that change is required across the system. The bill responds to several recent public reviews and reports that have identified ways to improve transparency and accountability in Corrective Services NSW. Together, the amendments in the bill indicate the Government's ongoing commitment to restoring confidence in the operations and integrity of the Corrective Services NSW system.

I again thank the stakeholders that have contributed to the development of this bill. In particular, I thank the Public Service Association, the Inspector of Custodial Services, the NSW Ombudsman, Legal Aid NSW, the NSW Bar Association, the Law Society of New South Wales and Domestic Violence NSW for their considered input. I also thank the staff from both the Department of Communities and Justice and Corrective Services NSW who have supported the development of the bill, including consultation with stakeholders. I thank Sally Taylor, Jonathon Lee, Kate Peltonen, David Spackman and Sallie McLean, and all other staff for their commitment to ensure the laws that govern Corrective Services NSW best support integrity, transparency and accountability in the operations of the system. Lastly, I thank Minister Chanthivong's staff for their dedication to this important work. I thank Constance Piperides, Alicia Sylvester, Brooke O'Rourke and department liaison officers Laura Dewberry, Brenna Lorkin, Helen Samardzic and Maddy Griffiths. I commend the Minister, and I commend the bill to the House.

The DEPUTY PRESIDENT (The Hon. Rod Roberts): The question is that this bill be now read a second time.

Motion agreed to.

In Committee

The CHAIR (The Hon. Rod Roberts): There being no objection, the Committee will deal with the bill as a whole. I have one sheet of amendments, being The Greens amendments Nos 1 to 11 on sheet c2025-003C.

Ms SUE HIGGINSON (20:52): By leave: I move The Greens amendments Nos 1, 4 and 5 on sheet c2025-003C in globo:

No. 1Objects of Act

Page 3, Schedule 1[1], proposed section 2A(3)(b)(iii), line 23. Omit "people.". Insert instead—

people,

(iv)women and gender diverse persons,

(v)people with physical and cognitive disabilities,

(vi)people with life threatening conditions and illnesses.

No. 4Visits by Official Visitors to custodial centres

Page 7, Schedule 1[12], proposed section 8G(5)(b), line 26. Omit all words on the line. Insert instead—

(b)includes the power to carry out interviews in private, at the request of the potential interviewee or on the initiative of the Official Visitor, and

No. 5Visits by Official Visitors to custodial centres

Page 7, Schedule 1[12], proposed section 8G. Insert after line 27—

(6)An Official Visitor visiting a custodial centre to which the Official Visitor is assigned must inform custodial centre staff members at the centre and the persons in custody, detained or residing at the centre, that interviews with the Official Visitor may be carried out in private.

The amendments seek to ensure that the objects of the Act set out to particularly improve the prospects of rehabilitation for offenders who are women and gender diverse, people with psychological and cognitive disabilities and people with life-threatening illnesses, as well as First Nations people, people from culturally and linguistically diverse backgrounds, and children and young people. Those were originally set out in the Government's proposed changes.

Amendments Nos 4 and 5 also seek to ensure that visits by Official Visitors and the inspector to custodial centres explicitly include the power to carry out interviews in private at the initiative of either the interviewer or the interviewee. It also stipulates that the inspector and the Official Visitor are obliged to inform the centre staff and inmates of that power. The change, in our view, is extremely important to ensure that inmates and staff feel safe to request a private interview and know their rights around such requests. We know that having private interviews will ensure that inmates are able to report cases or incidents about mistreatment or maladministration without fear of retribution.

The Hon. MARK BUTTIGIEG (20:55): The Government supports amendments Nos 1, 4 and 5. In respect of amendment No. 1, the Government supports the amendment to proposed section 2A (3) (b) of the Inspector of Custodial Services Act 2012, or the ICS Act. The additional categories of persons to whom a person exercising a function under the Act must have regard to are consistent with the categories of persons that were recommended in the 2021 statutory review of the Act. In respect of amendment No. 4, the Government also supports the amendment to new section 8G (5) (b) of the ICS Act. There are no concerns with clarifying that the power to carry out private interviews is exercised at the request of the interviewee, or on the initiative of the Official Visitor, noting it is likely that a private interview would be carried out at the request of the interviewee anyway.

In respect of amendment No. 5, the Government supports the amendment to new section 8G of the ICS Act. Even without a statutory requirement for an Official Visitor to inform staff and persons in custody that interviews may be carried out in private, Official Visitors would likely notify staff and persons in custody of this. It is important to note that the amendment does not affect the discretion of Official Visitors in refusing to carry out a private interview at the request of the interviewee if the Official Visitor is of the view that a private interview is not appropriate, for example, for safety reasons. For those reasons, the Government supports those amendments.

The Hon. AILEEN MacDONALD (20:57): The Opposition also supports amendments Nos 1, 4 and 5. Amendment No. 1 expands the Inspector of Custodial Services oversight focus to ensure vulnerable groups are considered in inspections and aligns with the broader human rights concerns. Amendment No. 5 strengthens independent oversight and allows detainees to communicate grievances without staff interference, and strengthens procedural safeguards, ensuring detainees' concerns are documented. Amendment No. 5 improves risk management and ensures that findings are formally recorded, and it could lead to greater accountability.

The CHAIR (The Hon. Rod Roberts): Ms Sue Higginson has moved The Greens amendments Nos 1, 4 and 5 on sheet c2025-003C. The question is that the amendments be agreed to.

Amendments agreed to.

Ms SUE HIGGINSON (20:59): By leave: I move The Greens amendments Nos 2, 3 and 6 to 11 on sheet c2025-003C in globo:

No. 2Persons who must not be Official Visitors

Page 6, Schedule 1[12], proposed section 8D(c), line 23. Omit "centre". Insert instead—

centre,

(d)a person who has been, within the previous 12 months, employed as a custodial centre staff member.

No. 3Assignment of Official Visitors

Page 7, Schedule 1[12], proposed section 8F(3)(a) and (b), lines 6 and 7. Omit all words on the lines. Insert instead—

(a)2 Official Visitors (Adults) for each adult custodial centre, and

(b)2 Official Visitors (Children) for each juvenile justice centre.

No. 6Official Visitors to deal with complaints and inquiries

Page 7, Schedule 1[12], proposed section 8H(5)(a), line 43. Insert "written" before "consent".

No. 7Written reports by Official Visitors

Page 9, Schedule 1[12], proposed section 8J. Insert after line 11—

(a1)the Commissioner of Corrective Services,

No. 8Official Visitors must not deal with restricted persons

Page 9, Schedule 1[12], proposed section 8K, lines 18–25. Omit all words on the lines.

No. 9Response to Inspector's recommendations

Page 12, Schedule 1[23], proposed section 16A. Insert after line 16—

(4)The following must be given to the Presiding Officer of each House of Parliament and must be laid before each House within 15 sitting days after it is received by the Presiding Officer—

(a)a copy of a written notice given under subsection (2),

(b)a copy of information given to the Inspector in response to a written notice given under subsection (2).

No. 10Determination of reviews by Commissioner

Page 16, Schedule 2[3], proposed section 65D. Insert after line 19—

(7)Following a review, the Commissioner must give the inmate written notice of the outcome of the review and the reasons for the Commissioner's determination.

No. 11Other provisions about reviews by Commissioner

Page 16, Schedule 2[3], proposed section 65E(2), line 25. Omit "substantially".

These amendments seek to better improve the protections for incarcerated people and the safety of all who work in correctional centres. Amendment No. 2 goes to who is eligible to be an official visitor. Our view is that a person who has been employed at a custodial centre as a staff member within the previous 12 months is not an appropriate official visitor. I completely understand that there may be some benefit, but we have thought about this long and hard, and any benefit that could be obtained through that classification or qualification to be an official visitor is not outweighed by the potential detriment, and any benefit in their contribution to the work of official visitors to centres could be provided through other means. That is the purpose behind No. 2. We must consider carefully and be cautious around these important roles, including official visitors to correctional centres.

Amendment No. 3 is about the assignment of official visitors. This amendment says that there should be two official visitors at any given time: two for every adult custodial centre and two for every youth justice centre. Again, the Government has its reason why it does not think it is necessary or appropriate. It is literally the toss. We think that two is a much more robust system to have in place, particularly considering the nature of this work, and having two at any given time is a safety mechanism and a guard. Amendment No. 6 goes to the consent around dealing with complaints and inquiries and official visitors. We are suggesting that any consent around those relationships and interactions should involve written consent, not just simple consent. Again, this is about providing those extra safeguards around how we are doing business. Amendment No. 7 goes to official visitors' written reports. We seek that the Commissioner of Corrective Services have an extra obligation there.

Amendment No. 9 is in relation to the response to inspectors' recommendations. We are seeking clarification about when those recommendations are provided to the Parliament. We are suggesting that there must be a time around this—that reports must be laid before the House within 15 sitting days of being received by the Presiding Officer. We seek that copies of written notices given under the provision and copies of information given to the inspector in response to written notices be also laid before the House. I think that would provide more clarity and certainty around expectations about the timing and the accountability. It really is just about the accountability.

In this place, when we are requiring oversight bodies and the tabling of documents, we try to put in terms about what is reasonable and "as soon as possible". Being a little bit clearer and having some more certainty around our obligations and the timing really assists accountability, particularly for those who are keeping watch. It assists in that robust accountability and the transparency around reporting and particularly the Parliament. I have seen how efficient and incredible this place is when it comes to the tabling of documents before the House.

Amendment No. 10 goes to what has been discussed around the disciplinary procedures. Others have already touched on what we saw in the Ombudsman's report around Clarence Correctional Centre. I am sure others read that report and had the same awful, chilling, dark feelings that come through a person when you see how bad a justice system is; when it is so flawed and so wrong and does not have any rules of procedural fairness; at the idea that somebody has no access whatsoever to justice and then is delivered injustice on top of that absolute inability to access any call for justice. We saw that in the Ombudsman's report—that absolutely gross, punitive kangaroo court system with no accountability; this idea of this unfettered power punishing another person. It is one of those documents you read once, and you just hope you never have to read anything so awful and so grossly dehumanising and disempowering again. So this is—

The Hon. Wes Fang: Point of order: Whilst latitude is extended to speeches in Committee, I think the member is starting to pontificate a little bit. I ask you to draw her back to the amendments she moved.

The CHAIR (The Hon. Rod Roberts): While I have some sympathy for your position, Mr Fang, I believe the member was addressing the amendments concerned. I remind members to generally focus on the amendments.

The Hon. Wes Fang: Brevity is the member's friend.

The CHAIR (The Hon. Rod Roberts): The Hon. Wes Fang is already on one call to order, I believe. Do not make it two.

Ms SUE HIGGINSON: As I was saying, that incredibly awful, dreadful report of the Ombudsman that this provision goes specifically to is about those accountability processes, those appeal processes, those mechanisms within the system to review the disciplinary procedures within Corrective Services, following any review that the commissioner can now do. Fortunately, the Government's legislation provides this avenue now. We are seeking simply to insert that the commissioner must give the inmate a written notice of the outcome of any review and for the reasons for the commissioner's determination to be provided. It is one of the simplest types of administrative fairness when it comes to adjudication in disciplinary proceedings. But, unfortunately, the Government is not supporting this one. I wish it was. Amendment No. 11 is also about those reviews by the commissioner.

These amendments that I moved in globo, as I said at the outset, simply seek to better improve the protections for incarcerated individuals and also to provide some safeties and mechanisms around these amendments and new initiatives within the legislation that will also provide more protection for those who work in correctional centres. The more robust our procedures are, the more protected people are and the more transparency and accountability there is. That is what all of these amendments go to.

The Hon. MARK BUTTIGIEG (21:08): I thank Ms Sue Higginson for her contribution. The Government will not be supporting The Greens amendments Nos 2, 3 and 6 to 11. I will go through each one in turn. The New South Wales Government does not support amendment No. 2 to the proposed section 8D of the Inspector of Custodial Services [ICS] Act. The Government considers that the current drafting, which excludes persons currently employed as custodial staff members from being appointed as official visitors, is sufficient to mitigate potential conflicts of interests. Additionally, this amendment was not a recommendation in the Astill inquiry or the statutory review of the Act.

In respect of amendment No. 3, the New South Wales Government does not support the amendment to new section 8F (3) of the ICS Act. Although juvenile justice centres and large adult correctional centres have at least two official visitors appointed, smaller adult correctional centres, 24‑hour court cells and some residential centres have only one official visitor appointed due to the smaller populations of those types of custodial centres. Requiring an additional official visitor to be appointed at those smaller custodial centres would be unnecessary and would have budgetary and resourcing impacts due to the need to recruit, pay and manage additional official visitors. Additionally, the New South Wales Government is not aware of any concerns about the availability of official visitors at those smaller centres that warrant a statutory requirement to appoint additional official visitors.

In respect of amendment No. 6, the New South Wales Government does not support the amendment to new section 8H (5) (a) of the ICS Act. Requiring an official visitor to obtain written consent of the complainant in order to deal with complaints and inquiries would pose a barrier for some inmates and youth justice detainees due to literacy or cognitive issues or fear of reprisal. Flexibility as to the type of consent, for example, verbal or written, is therefore required. An official visitor will satisfy themselves as to whether consent has been provided and will make a record. In respect of amendment No. 7, the New South Wales Government does not support the amendment to new section 8J of the ICS Act. Official visitors are part of the oversight regime for the adult and youth correctional systems. They report to the Inspector of Custodial Services and to the respective Ministers but operate independently of Corrective Services NSW and Youth Justice NSW. Reports may also contain confidential information or allegations about custodial staff.

In terms of amendment No. 8, the New South Wales Government does not support the amendment to remove new section 8K of the ICS Act. The Crimes (Administration of Sentences) Regulation 2014 provides that official visitors are not permitted to deal with extreme high‑risk restricted national security interest category AA male or category 5 female inmates. Those categories of inmates are the most high‑risk inmates in the correctional system and are subject to high levels of restrictions in order to safely and securely manage them in custody. Those inmates must lodge any complaints with the NSW Ombudsman rather than an official visitor.

As the provisions governing official visitors are moving from the Crimes (Administration of Sentences) Regulation to the ICS Act, new section 8K of the ICS Act will enable a regulation to be made under the ICS Act to continue the existing restrictions on official visitors dealing with those high-risk inmates should the New South Wales Government consider that still necessary. Given the default position of the ICS Act will be that there are no restrictions on official visitors dealing with any inmates unless a regulation is made, it is something the New South Wales Government will be considering. It is not something that can be rushed through as part of this bill.

In terms of amendment No. 9, the New South Wales Government does not support the amendment to new section 16A of the ICS Act. A response to a notice issued under new section 16A could potentially include sensitive or confidential information that should not be tabled in Parliament. Further, the amendment does not provide the inspector with any discretion not to provide information received in response to a notice issued to a Presiding Officer, including where there is an overriding public interest against disclosure. It is inconsistent with section 15 of the ICS Act, which provides that the inspector must not provide information in a report to Parliament if there is an overriding public interest against disclosure.

In terms of amendment No. 10, the New South Wales Government does not support the amendment to new section 65D of the Crimes (Administration of Sentences) [CAS] Act 1999. Requiring the commissioner to provide written decisions and written confirmation to every inmate and former inmate would be significantly resource intensive. Corrective Services NSW has sent broadcast communication to current inmates about the process. As a matter of policy, inmates will be notified in writing where a review of a decision results in varying or setting aside the original decision and reimbursement of compensation. Further broadcast communication to inmates will be sent once the process is complete.

Finally, in respect of amendment No. 11, the New South Wales Government does not support the amendment to new section 65E of the CAS Act. There could be many staff who are insubstantially involved in a disciplinary decision, including staff who are not involved in any substantive decision‑making. Restricting any staff member who was tangentially involved in the original decision could be logistically difficult, particularly at smaller centres. The word "substantially" ensures that the reviewer is sufficiently independent from the original decision‑maker and should therefore be maintained. For those reasons, the Government does not support this suite of amendments

The Hon. AILEEN MacDONALD (21:15): The Opposition does not support The Greens amendments Nos 2, 3 and 6 to 11 on sheet c2025‑003C. Whilst we acknowledge that the amendments do increase transparency and oversight, they also introduce practical and bureaucratic challenges that may require additional resources to implement effectively. For that reason, we will not be supporting the amendments

The CHAIR (The Hon. Rod Roberts): Ms Sue Higginson has moved The Greens amendments Nos 2, 3 and 6 to 11 on sheet c2025‑003C. The question is that the amendments be agreed to.

The Committee divided.

Ayes5

Noes25

Majority20

AYES

Boyd

Faehrmann (teller)

Hurst

Cohn

Higginson (teller)

NOES

Banasiak