Ms O’CONNOR – Mr President, I move –
That the bill be now read the second time.
All of us understand, or we should understand, the integral role that whistleblowers play in shining light into dark places. If not for the courage of whistleblowers in Tasmania, this place and the broader Tasmanian community would not have the understanding that they do of the historical, and at times contemporary, circumstances faced by young people in Ashley Youth Detention Centre. It was the courage of whistleblowers and victim-survivors whose stories led to the establishment of the Commission of Inquiry, so we do need to make sure that there are strong whistleblower protections in place.
At the outset, I will indicate that we have two amendments for this bill. During debate in the other place, the Attorney General proposed a number of amendments for us to consider before bringing on the bill in this place. I would like to acknowledge the work of my colleague, the member for Bass, spokesperson on corrections, Cecily Rosol, and our advisers in developing this bill to this point. Subsequent discussions narrowed down the proposed amendments to two, and we’ve prepared amendments to address these two matters in response to the government’s requests.
The Custodial Inspector Act 2016 was enacted almost a decade ago. Since the act’s inception, it’s only been amended twice, via the Public Sector Superannuation Reform Consequential and Transitional Provisions Act 2016 and the Dangerous Criminals and High Risk Offenders Act 2021. Both acts only made minor consequential amendments. In nine years of operation of this act, it has not had any substantive amendment.
Section 26(2)(c) of the principal act requires that the Custodial Inspector’s annual report contains ‘any recommendations for changes in the laws of the state or for administrative action that the inspector considers should be made as a result of the performance of the inspector’s functions’.
In their 2020-21 annual report, the inspector first published recommendations under this section of the act. In the inspector’s words:
It has become evident that the legislative provisions for inspection reports result in a cumbersome and drawn‑out process which potentially risks compromising the inspector’s independence. The inspector recommended that the act be amended to allow for the custodial inspector to table their reports themselves, rather than through the minister, and that the time frames involved in the tabling be reduced.
Clause 6 of our bill amends section 15 of the principal act to provide that the inspector is to table their own report, rather than the minister. It’s from the inspector straight to the parliament. The clause also reduces the time frame for tabling from ‘not before 30 days’ after the report has been provided to the minister to ‘not before seven days’.
We’re embracing the new cooperative parliamentary arrangements. During debate in the House of Assembly, the Attorney‑General indicated that the government believes seven days is not a reasonable time frame for the government, the minister, to consider the report before tabling. A week might be a long time in politics, but seven days is indeed a short period of time as these matters go. The custodial inspector’s recommendations didn’t provide for an explicit time frame, just for a time frame shorter than 30 days. On this basis, we are prepared to increase the time frame to 14 days. We understand the custodial inspector is comfortable with this amendment.
The proposed power for the custodial inspector to table their own reports is not unique. The national preventive mechanism under section 19(2) of the OPCAT Implementation Act 2021 has the power to table their own inspection reports. The Integrity Commission, under section 11(3) of the Integrity Commission Act 2009, can table a report on any matter arising in connection with the performance of its functions or exercise of its powers. The Ombudsman under section 28(6) of the Ombudsman’s Act 1978 can table a report arising from an investigation themselves. Similarly, the Audit Office and the Commissioner for Children and Young People both have the authority to table their own reports of this nature. The only example that we can find of an independent body that cannot table their own investigation reports is the Health Complaints Commission special reports.
The current requirement for the custodial inspector to go through the minister is very much the exception rather than the norm. This recommendation has been reiterated in the inspector’s subsequent annual reports. The 2022‑23 Custodial Inspector annual report made this recommendation, which was joined by a range of others. First among these was a call for protections from reprisal. In the inspector’s words: [tbc]
Unfortunately, some people who’ve raised their concerns with my office have also reported that their actions in speaking with my office were sometimes not well received. There are no protections for people who do come forward to report issues to my office. There should be.
The custodial inspector recommended provisions similar to those in section 36 of the OPCAT Implementation Act 2021.
Clause 9 of our bill introduces protection from reprisal provisions consistent with this recommendation. The clause would introduce a new section 25(a) that prohibits a person from prejudicing or threatening to prejudice a person’s safety or career, intimidating, harassing or threaten to intimidate or harass a person, take a detrimental action or permitting another person to do any of the above to a person in response to a person providing information to the inspector.
The penalty for a reprisal is up to 240 penalty units, which in today’s dollars is $48,480, or imprisonment for a term not exceeding two years, or both. Of course, it is a very serious matter to subvert public interest disclosures of any kind, which is why this penalty, in our view, is proportionate. In addition to section 36 of the OPCAT Implementation Act 2021, similar provisions can be found in section 19 of the Public Interest Disclosures Act 2002, and that’s another act that does need significant reform and the attention of the parliament and certainly something the Greens are keen to progress.
Section 54(2) of the Integrity Commission Act 2009 also provides a broad protection against violence, punishment, damage, loss, or disadvantage to another person for or on account of that person having given evidence. In addition to provisions that provide protection from reprisal, the Custodian Inspector notes that section 35 of the OPCAT Implementation Act 2021 provides considerable discretion in being able to share information that would assist in the work to improve conditions of people in places of detention.
Clause 10 of this bill amends section 34 of the principal act to extend protections for the provision of information on similar terms to section 35 of the OPCAT Implementation Act 2021. This clause extends the coverage to provision of information made for the purposes of the act rather than just under the act and extends to civil liability as well as adding a qualifier that the protections only apply in so far as the information was made, the disclosure was made, the information provided in good faith. Our second amendment relates to this clause. As currently drafted our bill does not apply solely to information provided to the custodial inspector or an office of the custodial inspector.
In contrast, section 35 of the OPCAT Implementation Act 2021 applies to information provided to the National Preventive Mechanism of the Subcommittee on the Prevention of Torture and other Cruel, Inhumane or Degrading Treatment or Punishment of the Committee against Torture, established in accordance with the Optional Protocol. The current section 34 of the principal act does not apply solely to information provided to the custodial inspector or an officer of the custodial inspector. On this basis, when drafting, we retain the broad application so as not to inadvertently weaken this provision.
As we understand it, the custodial inspector is comfortable with the government’s proposal to have this provision only apply to information provided to the custodial inspector or an officer of the custodial inspector. The amendment very closely resembles the provisions in section 35 of the OPCAT Implementation Act 2021.
The Custodial Inspector’s 2022-23 Annual Report also noted the information sharing powers of the Custodial Inspector are quite limited. Section 24(4) of the Custodial Inspector Act 2016 allows for information sharing with the Integrity Commission, Coroner or Auditor-General, and section 30 allows information to be shared with the Ombudsman. The Custodial Inspector notes there are no similar provisions allowing information to be shared with the Health Complaints Commissioner, Anti-Discrimination Commissioner and Commissioner for Children and Young People, for example.
In contrast, Section 22 of the OPCAT Implementation Act 2021 allows information to be shared with, amongst other entities, public authorities and the responsible minister. Clause 8 of this amendment bill introduces a new subsection (4A) to section 24 of the principle act to allow information to be shared with public authorities and the responsible minister. The Custodial Inspector also noted that current provisions of the act prevent the inspector from delegating powers to consultants or advisers. The practical concern is that it is necessary to acquire a gate pass in order for consultants or a delegate to be granted access, which means that conducting an unannounced inspection without the Tasmania Prison Service being made aware of the inspection, is not possible. The inspector recommended that changes be made that allow for them to delegate some of their powers to consultants. Clauses 4 and 5 amend sections 4 and 10 of the Custodial Inspectors Act respectively to ensure that persons appointed for purposes of the carrying out of an inspection can have the powers delegated to them. The final recommendation of the inspector that this bill addresses is the request for an amendment to section 17, to clarify that officers of the inspector also have the power to engage confidentially with prisoners or detainees.
The recommendations of the Custodial Inspector should not be controversial. They should be supported, and I hope Council will support the recommendations that would be given effect through our amendment bill. Many of these amendments are small, practical changes that have become apparent over the nine years of the act’s operation, that would enable the act and the inspector to operate as they were always intended to.
Other amendments, like protections from reprisal and the ability to directly table investigation reports, are the common standard with similar bodies and legislation. They will serve to improve the independence and effectiveness of the Custodial Inspector, as well as the safety of those who disclose information to the inspector. This year’s ‘Custodial Inspector Annual Report’ notes this bill that we are debating today and makes no further recommendations. I do hope Council supports this bill, and supports the amendments, and I commend the bill to the House.
