On Tuesday 28 May 2019, the NSW Minister for Counter Terrorism and Corrections, Mr Anthony Roberts (the Minister) introduced the Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019 (the Bill) into the NSW Assembly. The Bill is described in the Minister's second reading speech as necessary to ensure prison officers have the tools necessary "to manage inmate behaviour in order to ensure the safety and security of correctional centres as well as their own safety". As part of this, a key aspect of the Bill is the targeting of a loophole used by notorious NSW inmate Bassam Hamzy to escape conviction for allegedly bashing a prison guard.
The key tools available to the Government in this sense are indicated by the Minister to be "privileges". In his second reading speech the Minister describes them as: "tools that can be used to incentivise good behaviour and removed following a regression in behaviour and allow an immediate response to an inmate's behaviour."
A "withdrawable privilege" is defined in section 51 of the Crimes (Administration of Sentences) Act 1999 (NSW) as "a privilege or amenity that is declared by the regulations to be a withdrawable privilege for the purposes of this Division." The regulations that are referred to in the section 51 definition are the Crimes (Administration of Sentences) Regulation 2014. Clause 163 of the Crimes (Administration of Sentences) Regulation 2014 lists 12 privileges that can be withdrawn under the provision, which include the ability to pursue a hobby (163(i)), access to CDs/DVDs and the use of players (163(d), (e)), keeping of approved personal property (163(h)), contact visits (163(k)), telephone use (163(j)) and leave permits (163(l)).
In his second reading speech, the Minister said there are two distinct types of inmate behaviour that can affect the management, good order and security of a correctional centre - Correctional Centre offences and criminal offences (although there can be offences which fall into both categories). A Correctional Centre Offence is any act or omission by an inmate while in custody that is declared to be an offence under the Crimes (Administration of Sentences) Regulation 2014. The regulations in Schedule 2 set out a list of Correctional Centre Offences, which currently number 69 offences and include:
The Hamzy decision was explained by the Minister as occurring as a result of a scenario where an inmate's behaviour could be either a Correctional Centre Offence or criminal offence. namely in the case of an assault on a prison officer. The recent District Court decision in the Hamzy case, according to the Minister, has cast doubt on what immediate lawful responses are available to corrective services staff.
In Hamzy v R (which is an unreported case), the District Court of NSW in its Criminal Jurisdiction, on 21 February 2019, found that it is "unlawful" to use incentive-based schemes to remove withdrawable privileges in response to inmate conduct that may also constitute a Correctional Centre Offence, where it is done otherwise than in accordance with the process set out in Part 2 Division 6 of the Crimes (Administration of Sentences) Act 1999 which sets out the processes for correctional centre discipline. The District Court as a result quashed the inmate Hamzy's conviction for assaulting a correctional officer and ordered a permanent stay of the prosecution.
According to the Minister's second reading speech, the Bill will provide clarity and certainty for corrective services staff, ensuring that there can be an immediate lawful response to address inmate behaviour without affecting the outcomes of any disciplinary proceedings or criminal proceedings. The proposed amendments are intended to ensure that Corrective Services will have the flexibility to respond quickly and effectively to incidents involving inmate misconduct, regardless of whether the incident later results in formal disciplinary proceedings or a criminal prosecution.
Schedule 1 of the Bill proposes to insert a new section 65A into Part 2 Division 6 of the Crimes (Administration of Sentences) Act 1999. The proposed new subsection 65A(1) allows the Commissioner to adopt policies to manage the behaviour of inmates, referred to as behaviour management policies. The proposed new subsection 65A(2) permits a behaviour management policy to include any matter relating to the management of the behaviour of inmates in accordance with the Crimes (Administration of Sentences) Act 1999, and also allows behaviour management policies to specify circumstances in which the withdrawable privileges provided to an inmate may be modified. The proposed new subsection 65A(3) clarifies the interaction between the modification of withdrawable privileges under a behaviour management policy and the existing provisions of Crimes (Administration of Sentences) Act 1999 Part 2 Division 6. It does this by first, making it clear that the modification of withdrawable privileges is authorised even if the circumstances which cause the modification relate to an act or omission that is a Correctional Centre Offence or a criminal offence. Secondly, the proposed new subsection 65A(3), states that withdrawable privileges may be modified at any time, regardless of any proceedings or process underway, or any penalty imposed in relation to a Correctional Centre Offence or criminal offence. Thirdly, the proposed new section 65A (3) also makes it clear that the modification of privileges under a behaviour management policy does not prevent the commencement or continuation of proceedings for a Correctional Centre Offence or criminal offence.
In his second reading speech the Minister stated:
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Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019 and speech and explanatory material as reported on the TimeBase LawOne Service.
Crimes (Administration of Sentences) Act 1999 (93 of 1999) [NSW] as reported on the TimeBase LawOne Service
Crimes (Administration of Sentences) Regulation 2014 - No. 550 of 2014 as reported on the TimeBase LawOne Service
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