Mr GREG WARREN (Campbelltown) (14:58): I am delighted to contribute to debate on the Crimes (Administration of Sentences) Amendment Bill 2024. The bill continues the Government's program of work to increase the integrity, transparency and clarity of Corrective Services NSW operations. It amends the Crimes (Administration of Sentences) Act 1999 [CAS Act] to respond to the only recommendation that the Special Commission of Inquiry into offending by former Corrections Officer Wayne Astill at Dillwynia Correctional Centre made for legislative amendment to the CAS Act, recommendation 4, by strengthening the offence at section 236Q. That offence prohibits correctional employees from engaging in sexual conduct or intimate relationships in particular circumstances. It also provides greater certainty as to the regulations that can be made under the CAS Act to ensure that existing regulations are supported by express regulation-making powers, rather than relying on broader provisions, and to increase transparency and understanding in the community about what type of work can be community work for the purpose of serving a sentence. It also improves the clarity and operation of the Act by making minor amendments.
I now turn to the misconduct offence, which is outlined in section 236Q of the CAS Act and was introduced in November 2018 in response to community concern about sexual and other inappropriate relationships between employees of Corrective Services NSW and inmates at several New South Wales correctional complexes. I make the point, further to that made by the member for Terrigal, that the overwhelming majority of our correctional officers are wonderful, hardworking people who have a very difficult job. I hope that when they see this legislation—and, of course, they have all tuned in to watch—
Mr Adam Crouch: Just to watch you, Greg.
Mr GREG WARREN: No, Sesame Street is on. I put on record that the bill is not a reflection of a broad negative view about the wonderful correctional officers throughout the service, who have a very hard job. It is merely a legislative response to an inquiry that made recommendations. It is not based on an overarching cultural problem throughout the system. I can honestly say that, and I commend the Minister and his team for all their thorough work, including stakeholder relationships, in bringing this legislation to the floor of the House today.
As noted by the Astill inquiry, currently section 236Q requires proof of two things: first, that a correctional employee engaged in sexual conduct or an intimate relationship with an inmate or a person subject to a community-based order; and, second, that the conduct or relationship posed a risk to the safety, security or good order and discipline of a correctional centre, or compromised the proper administration of a sentence. The Astill inquiry noted that the policy rationale for the second requirement was unclear. Recommendation 4 provides that section 236Q should be amended so that in cases where a correctional employee engages in sexual conduct or an intimate relationship with an inmate in custody, there is no need to further prove that that created a risk or potential risk. The recommendation also stated that the offence should remain in its current form in respect of a correctional employee who has engaged in sexual conduct or an intimate relationship with a person who is subject to a community-based order.
In response to the recommendation, the bill amends section 236Q to split the existing single offence into three separate offences, each punishable by the same maximum penalty of 20 penalty units, two years imprisonment or both. The first offence prohibits a correctional employee from engaging in sexual conduct or an intimate relationship with an inmate. As recommended by the Astill inquiry, there is no need to prove that the conduct caused a risk or potential risk. The second offence applies where a correctional employee has a pre‑existing relationship as a couple with an inmate, recognising that, in rare cases, there may be a marital, de facto or other long-term relationship between a correctional employee and inmate that existed before the inmate entered custody. As with the first offence, where a correctional employee engages in sexual conduct with an inmate with whom they have a pre-existing relationship as a couple, that will constitute an offence regardless of any particular risks.
However, where a correctional employee continues an "intimate relationship" with the inmate, that will constitute an offence if the relationship also causes risks to safety, security or good order and discipline at a correctional centre, or compromises the proper administration of the sentence. The correctional employee may continue to engage in an intimate relationship with the inmate, such as exchanging written communications of an intimate nature. The requirement to satisfy the additional threshold test recognises that whether such conduct poses a risk will depend on the particular circumstances of the case. Whilst the intimate relationship may be maintained, under no circumstances is sexual conduct permitted under the legislation. The bill consequentially amends the definition of "intimate relationship" to omit any reference to sexual conduct and amends the definition of "sexual conduct" to refer to sexual intercourse or other physical conduct of a sexual nature. That draws a clear distinction between the two types of behaviour.
The third offence applies where a correctional employee engages in sexual conduct or an intimate relationship with a person subject to a community-based order. Consistent with recommendation 4 of the Astill Inquiry, such conduct will constitute an offence where it also compromises the proper administration of a community-based order. That is the case regardless of whether there is a pre-existing relationship as a couple between the correctional employee and the person subject to the order. An exception to the third offence will apply where the correctional employee did not know that the person was subject to a community-based order. That is an existing exception, although it will no longer apply in respect of inmates in custody, as a correctional employee would inevitably know about an inmate's status.
Regulation-making powers provide flexibility in the administration, operation and implementation of legislation by allowing certain matters to be made into law through a streamlined process. However, as the making of a regulation is not subject to the same level of parliamentary scrutiny as amendments to other legislation, it is important for regulation-making powers to be as precise as possible in order to provide clarity as to the matters that are permitted to be prescribed by regulation. The bill makes numerous amendments to the regulation-making powers under the CAS Act in order to provide greater certainty as to the matters that can be prescribed by the regulations, and to ensure that, where appropriate, existing regulations are supported by specific regulation‑making powers rather than relying on broader regulation-making provisions. The amendments are machinery‑type technical amendments. While the amendments to the regulation-making powers are too numerous to outline in detail— [Extension of time]
I thank the House. One key amendment will ensure that the regulations can provide for matters that are the subject of regulation-making powers under section 79 of the CAS Act to be determined, directed, approved or otherwise dealt with by a person or body who is specified in the regulations. Section 79 allows the regulations to make provision for a wide range of matters, including the management, control, administration, supervision and inspection of correctional centres; visits to inmates; and the circumstances in which a correctional officer may use firearms. Many existing provisions in the Crimes (Administration of Sentences) Regulation 2014—the CAS regulation—that are made under section 79 of the CAS Act are dependent on an action by a prescribed person or body for their operation or interpretation. For example, rather than stating the hours that persons may be permitted to visit a correctional centre, clause 75 of the CAS regulation currently states that the periods during which a person may visit a correctional centre are the periods determined by the commissioner.
Other amendments are intended to ensure that existing regulations are supported by specific regulation‑making powers rather than relying on broader provisions. For example, section 79 (1) (t) of the CAS Act allows the regulations to provide for the circumstances in which a correctional officer may use firearms, and in reliance on this provision, the CAS Regulation provides for matters such as the authority of correctional officers to carry firearms, the issuing of firearms, training courses and safety procedures. The bill replaces section 79 (1) (t) with a provision that expressly allows the regulations to provide for each of these matters and includes many similar amendments that provide greater specificity and guidance as to the matters that may be prescribed by regulation.
In conclusion, I again thank everyone involved in the inquiry. This legislative change clearly is a response to that inquiry. Yet again, we have seen the Government and the Minister—and I again thank the Minister's wonderful team who work very hard—providing members with information to ensure that we make a good assessment by relying on their hard work. I acknowledge and thank members opposite for their support of the bill. The bill provides our corrections officers and our correctional department, workers and staff with more protections whilst also providing the judiciary with more clarity. Clearly, this legislation has come before the House because the reforms needed to be enshrined in law so that the judiciary can perform its role as effectively as possible. I again acknowledge the workers throughout Corrective Services NSW. This legislation is not a reflection on them. The bill is a legislative requirement and does not relate to the wonderful and hard work that corrections officers do every day. We know that their work is so important, yet at times very challenging.
