Part 8Miscellaneous

Part 8—Miscellaneous 82—Unauthorised dealings with prisoners prohibited (1) A person to whom this section applies must not enter into a contract or other dealing of a prescribed class with a prisoner unless the person has the permission of the CE. Maximum penalty: $10 000 or imprisonment for 2 years. (2) A contract entered into in contravention of this section is void and of no effect. (3) This section applies to— (a) an officer or employee of the Department; and (b) a police officer employed in a correctional institution; and (c) a person of a prescribed class. 83—CE may make rules (1) The CE may make rules for the purposes of this Act. (2) The CE may vary or revoke any rules made under subsection (1). (3) The Subordinate Legislation Act 1978 does not apply to rules made under this section. (4) The Minister must cause rules made under this section to be published for the benefit of persons affected by the rules in such manner as the Minister thinks fit and, in giving effect to this section, must ensure, as far as is reasonably practicable, that the rules are made known to any prisoner who is illiterate or whose principal language is not the English language. 84—Compliance with the execution of process Subject to this Act, the CE and the manager of a correctional institution must comply with any order or direction lawfully given by an officer of a court or police officer for the purposes of the due execution of any process or order of a court or magistrate or issued otherwise pursuant to law. 85—Execution of warrants An officer or employee of the Department authorised by the CE for the purpose may, on behalf of the Commissioner of Police, execute on a prisoner any warrant of a court or magistrate or other duly issued warrant. 85A—Exclusion of persons from correctional institution (1) Despite any other provision of this Act— (a) if the manager of a correctional institution believes on reasonable grounds that a person lawfully attending the institution in any capacity (other than a member of the staff of the institution) is interfering with or is likely to interfere with the good order or security of the institution, the manager— (i) may cause the person to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose; and (ii) may, in the case of a person who visits or proposes to visit a prisoner under section 34, by written order, exclude the person from the institution until further order or for a specified period; and (b) if a person to whom this paragraph applies— (i) enters or proposes to enter a correctional institution; or (ii) visits or proposes to visit a prisoner in a correctional institution under section 34, the CE may, by written order, direct that the person be excluded from a specified correctional institution, all correctional institutions of a specified class, or all correctional institutions, until further order or for a specified period. (1a) Paragraph (b) of subsection (1) applies to a person who the CE believes on reasonable grounds— (a) is interfering with or is likely to interfere with the good order or security of a correctional institution; or (b) is a member of a criminal organisation, or associates with, or has associated with, a member of a criminal organisation. (1b) Despite paragraph (b) of subsection (1), the CE may permit a person the subject of an order under that paragraph to visit a prisoner under section 34 (either on a particular occasion or on a regular basis (as the CE considers appropriate)). (2) An order under subsection (1)(a) may be varied or revoked by the manager of the correctional institution and an order under subsection (1)(b) may be varied or revoked by the CE. (3) The manager of a correctional institution may cause any person who is attempting to enter or is in the institution in contravention of an order under this section to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose. 85B—Power of search and arrest of non-prisoners (1) The CE may— (a) cause any person who enters a correctional institution to submit, subject to the person's consent, to a limited contact search, and to having his or her possessions searched, for the presence of prohibited items; or (b) if there are reasonable grounds for suspecting that a person entering or in the institution is in possession of a prohibited item, cause the person and his or her possessions to be detained and searched; or (c) if there are reasonable grounds for suspecting that a vehicle entering or in the institution is carrying a prohibited item, cause the vehicle to be detained and searched. (2) If a person does not consent to a limited contact search, the CE may cause the person to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose. (3) Failure of a person to consent to a limited contact search does not of itself constitute grounds for suspecting that the person is in possession of a prohibited item. (4) The following provisions apply to a limited contact search: (a) the person cannot be required to remove any clothing or to open his or her mouth, and nothing may be introduced into an orifice of the person's body; (b) any direct contact with the person's flesh that is necessary for the purpose of the search must be minimal and within the bounds of propriety; (c) the person may be required to adopt certain postures or to do anything else reasonably necessary for the purposes of the search and, if the person does not comply with such a requirement, the CE may cause the person to be removed from the institution, using only such force as is reasonably necessary for the purpose; (d) the search must be carried out expeditiously and undue humiliation of the person must be avoided. (5) The following provisions apply to a search under subsection (1)(b): (a) the person may be required— (i) to remove his or her outer clothing (including footwear and headwear) but no other clothing; or (ii) to open his or her mouth (but force cannot be applied to open the person's mouth); or (iii) to adopt certain postures; or (iv) to submit to being frisked; or (v) to do anything else reasonably necessary for the purposes of the search, and, if the person does not comply with such a requirement, the CE may cause the person to be removed from the institution, using only such force as is reasonably necessary for the purpose; (b) nothing may be introduced into an orifice (including the mouth) of the person's body; (c) at least 2 persons, apart from the person being searched, must be present at all times during the search; (d) the search must be carried out expeditiously and undue humiliation of the person must be avoided. (6) The following provisions apply to a search under subsection (1)(c): (a) the driver of the vehicle may be required to do anything reasonably necessary for the purposes of the search; (b) if the driver does not comply with a requirement made under paragraph (a), the CE may cause the driver and the vehicle to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose. (7) If a prohibited item is found as a result of a search under this section, or a person fails to comply with a requirement lawfully made for the purposes of a search under this section— (a) the CE may cause the person or the driver of the vehicle, as the case may be, to be handed over into the custody of a police officer as soon as reasonably practicable and to be kept in detention until that happens; and (b) the item may be kept as evidence of an offence or otherwise dealt with in the same manner as a prohibited item under section 33A may be dealt with. (8) If the officer or employee who carries out a search of a person under this section suspects on reasonable grounds that a prohibited item may be concealed on or in the person's body, the CE may cause the person to be handed over into the custody of a police officer as soon as reasonably practicable and to be kept in detention until that happens. (9) On a person being detained under subsection (7) or (8), the CE must immediately cause a police officer to be notified. (10) Despite the preceding provisions of this section, if a person or vehicle may be detained under this section for the purposes of being searched, the CE may, instead, cause the person or vehicle to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose. (11) The annual report submitted under this Act by the CE in respect of a financial year must include the following particulars: (a) the number of persons detained under subsection (7) during the year and the duration of each such detention; and (b) the number of persons detained under subsection (8) during the year and the duration of each such detention. (12) This section does not apply to a person who is a prisoner in the correctional institution. (13) In this section— prohibited item means an item— (a) that is a prohibited item for the purposes of section 51; and (b) permission for the introduction of which into the correctional institution has not been given by the CE. (14) To avoid doubt, a reference in this section to a correctional institution includes a reference to all of the land identified in a proclamation under section 18(1) relating to the institution. 85C—Confidentiality (a1) The Board must not disclose information or evidence provided by a medical practitioner or psychologist in connection with the performance of the Board's functions or powers under this Act, unless the presiding member of the Board has authorised the disclosure. (a2) A person must not disclose— (a) protected information; or (b) information the disclosure of which the person reasonably believes would give rise to a serious risk to the life or safety of a person, unless authorised to do so by the CE. Maximum penalty: $20 000. (1) Without limiting a preceding subsection, a person must not disclose information relating to a person who is or has been a prisoner, probationer or parolee, or derived from the Victims Register, being information obtained (whether by the person or some other person) in the administration or enforcement of this Act, except— (a) as required or authorised by this Act or any other Act or law; or (b) as reasonably required in connection with the administration or enforcement of this Act or any other prescribed Act; or (ba) if, in the opinion of the CE, it is necessary to disclose the information in order to avert a serious risk to public safety; or (c) for the purposes of legal proceedings arising out of the administration or enforcement of this Act; or (d) to a government agency or instrumentality of this State, the Commonwealth or another State or Territory of the Commonwealth for the purposes of the proper performance of its functions; or (e) with the consent of the prisoner, probationer, parolee or registered victim to whom the information relates; or (f) in accordance with subsection (2). (2) The Board must, in respect of a prisoner released on parole, notify the Commissioner of Police of— (a) the place of residence of the parolee; and (b) the conditions to which the release on parole is subject. health practitioner means a person registered under the Health Practitioner Regulation National Law to practise in a health profession; medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); protected information means information— (a) contained in a report prepared by a health practitioner for the purposes of assisting the Department in the assessment, placement or management of a prisoner; or (b) relating to the safety or security of a correctional institution; or (c) the disclosure of which could reasonably be expected to prejudice a criminal investigation or national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth); psychologist means a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student). 85CA—Disclosure of health information (1) The— (a) Chief Executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Health Care Act 2008; and (b) Chief Executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Mental Health Act 2009, must disclose to the CE such personal information about a prisoner as is reasonably required for the treatment, care or rehabilitation of the prisoner. (2) Protocols or guidelines may be established for the purposes of this section. personal information means information or an opinion, whether true or not, relating to a prisoner whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 85CB—Disclosure of information relating to criminal history (1) The CE may request the Commissioner of Police to provide to the CE any prescribed information about a relevant person to which the Commissioner has access. (2) Nothing in subsection (1) is to be taken to require the Commissioner of Police to provide information that the Commissioner considers— (a) may prejudice or otherwise hinder an investigation to which the information may be relevant; or (b) may lead to the identification of an informant; or (c) may affect the safety of a police officer, complainant or other person. (3) To avoid doubt, a request may be made and prescribed information may be provided under this section without the consent of the relevant person to whom the information relates. (4) Without limiting section 6 but despite any other Act or law, if, in relation to an application of— (a) a person applying for appointment as an officer or employee of the Department; or (b) an officer or employee of the Department applying for appointment to a designated position, the CE refuses the application on the basis of prescribed information provided under this section, the CE is not required to provide to the applicant any grounds or reasons for the refusal other than that it was made in the public interest or that it would be contrary to the public interest if the application were not refused. (5) In this section— designated position means an appointment to a position in the Department designated by the CE; prescribed information, in relation to a relevant person, means the following information: (a) information or a report about the person's criminal history; (b) other information that relates to whether the person is suitable— (i) to be, or to continue to be, employed or engaged by the Department or a service provider; or (ii) to perform voluntary work or other activities in a correctional institution; relevant person means any of the following persons: (a) an officer or employee of the Department; (b) a person applying for appointment as an officer or employee of the Department; (c) any other person who performs a function under this Act; (d) a service provider; (e) a person who performs or seeks to perform voluntary work or other activities in a correctional institution; service provider—if services are to be provided by a person or body in connection with the performance of functions of the Minister, CE or Department under an agreement or arrangement with the Minister, CE or Department, the person or body who provides the services is a service provider. 85D—Release of information to eligible persons (1) An eligible person may apply to the CE for the release to him or her of any of the following information relating to a prisoner: (a) the name and address of the correctional institution in which the prisoner is for the time being imprisoned; (b) details of any transfer of the prisoner from one correctional institution to another; (c) details of the sentence or sentences of imprisonment that the prisoner is liable to serve; (d) the date on which and circumstances under which the prisoner was, is to be or is likely to be released from the correctional institution for any reason (for example, on bail, leave of absence, home detention, parole); (e) details of any escape from custody by the prisoner. (2) A person is an eligible person if he or she is— (a) a registered victim in relation to an offence for which the prisoner is imprisoned; or (b) a member of the prisoner's immediate family; or (c) a legal practitioner who represents the prisoner; or (d) any other person who the CE thinks has a proper interest in the release of such information. (3) The CE has an absolute discretion to grant or refuse an application for release of information to an eligible person. (4) A decision of the CE as to whether a person is an eligible person or to grant or refuse an application under this section is final and is not reviewable by a court. (5) The CE must not release information relating to a prisoner's release on parole without the consent of the Parole Board (but the Board may waive this requirement in such circumstances as it thinks fit). 85E—Confidentiality of biometric data (1) A person must not use or disclose biometric data derived from a biometric identification procedure relating to a visitor to a prison except as is reasonably required for the purposes of carrying out the biometric identification procedure. Maximum penalty: $10 000 or imprisonment for 2 years. (2) A person must not use or disclose biometric data derived from a biometric identification procedure relating to a prisoner except as is reasonably required— (a) for the purposes of carrying out the biometric identification procedure; or (b) in connection with the control and management of a correctional institution; or (c) for any other purpose contemplated by this Act. Maximum penalty: $10 000 or imprisonment for 2 years. biometric data means fingerprint data, iris scan data, or any other prescribed data or data of a prescribed kind that describes physical characteristics of a person or part of a person that may be used to identify the person; biometric identification procedure means a procedure in which biometric data relating to a person is obtained by means of photograph or scan and compared with other biometric data for the purposes of identifying the person. 86—Prison officers may use reasonable force in certain cases Subject to this Act, an officer or employee of the Department or a police officer employed in a correctional institution may, for the purposes of exercising powers or discharging duties under this Act, use such force against any person as is reasonably necessary in the circumstances of the particular case. 86AA—Prohibition on use of spit hoods (1) An officer or employee of the Department or a police officer employed in a correctional institution must not place a spit hood on the head of a person. Maximum penalty: Imprisonment for 2 years. (2) Subsection (1) applies despite any other provision of this Act or any other Act or law. spit hood means a covering (however described) that is intended to be placed over a person's head to prevent the person from spitting on, or biting, another person. 86A—Prison officer may carry prescribed weapon (1) The CE may authorise an officer or employee of the Department to carry a prescribed weapon while on duty for purposes specified by the CE. (2) An officer or employee authorised to carry a prescribed weapon under this section must comply with any requirements of the CE in relation to the handling, storage and responsible use of the weapon. prescribed weapon means a weapon prescribed by the regulations for the purposes of this section. 86B—Use of correctional services dogs (1) The CE may authorise an officer or employee of the Department to use a correctional services dog at a correctional institution or probation and parole hostel to assist in the maintenance of the good order or security of the institution or hostel. (2) Without limiting subsection (1), a correctional services dog may be used for any of the following purposes: (a) to carry out a search at a correctional institution or probation and parole hostel (including a search of an officer or employee of the Department) for any reason; (b) to track an escaped prisoner; (c) to patrol a correctional institution or probation and parole hostel; (d) to restrain a prisoner; (e) to assist a police officer in the execution of the police officer's functions at a correctional institution or probation and parole hostel. 87—Certain persons may enter and inspect correctional institutions Any judge of the Supreme Court, District Court judge or magistrate may, at any reasonable time, enter and inspect any correctional institution. 87A—Operation of remotely piloted aircraft (1) A person must not operate a remotely piloted aircraft within 100 metres of a correctional institution except with the permission of the CE. Maximum penalty: $10 000 or imprisonment for 2 years. (2) In this section— aircraft has the same meaning as in the Civil Aviation Act 1988 of the Commonwealth but does not include an aircraft of a prescribed kind. 87B—Remotely piloted aircraft—special powers (1) The CE may cause a remotely piloted aircraft to be seized and retained if the CE reasonably suspects that the remotely piloted aircraft has been operated in contravention of section 87A or affords evidence as to the commission of an offence against that section. (2) If the Magistrates Court, on application by the CE, or any court hearing proceedings for an offence against section 87A, finds that a remotely piloted aircraft seized under subsection (1) (a seized remotely piloted aircraft) was the subject of an offence against section 87A, the court may, by order, forfeit the seized remotely piloted aircraft to the Crown. (3) A seized remotely piloted aircraft that is the subject of an order for forfeiture under this section may be sold, destroyed or otherwise disposed of as the CE directs. (4) Subject to subsection (5), if a seized remotely piloted aircraft has not been forfeited to the Crown in proceedings commenced within the prescribed period after its seizure, a person from whose lawful possession the remotely piloted aircraft was seized, or a person with legal title to it, is entitled to recover the seized remotely piloted aircraft from the CE (if necessary, by action in a court of competent jurisdiction). (5) Despite subsection (4), a court hearing proceedings under that subsection in relation to a seized remotely piloted aircraft may, if it thinks fit, make an order under subsection (2) for forfeiture of the seized remotely piloted aircraft to the Crown. (6) Nothing in this section affects the operation of the Criminal Assets Confiscation Act 2005. (7) In this section— aircraft has the meaning given by section 87A(2); prescribed period means 2 years or such longer period as the Magistrates Court may, on application by the CE, allow. 88—Minister may acquire land The Minister may, for the purposes of this Act, acquire land in accordance with the Land Acquisition Act 1969. 88A—Summary offences Offences against this Act (not being indictable offences) are summary offences. 88B—Evidentiary provision (1) In any proceedings against a prisoner for being unlawfully at large after expiry of leave of absence from prison, or for contravention of or failure to comply with a condition to which the leave was subject, a document purporting to be the order of the CE (or his or her delegate) by which the leave of absence was granted or revoked or a condition was varied, will, in the absence of proof to the contrary, be taken to be proof of the order. (2) In any proceedings, an apparently genuine document purporting to be a certificate signed by the CE (or a delegate of the CE), and certifying that a dog used during a specified period for a specified purpose under section 86B within a specified area, or at a specified correctional institution, was a correctional services dog constitutes proof, in the absence of proof to the contrary, of the matters so certified. 89—Regulations (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), regulations may be made— (a) providing for the treatment of remand prisoners; and (b) providing for the treatment of contempt prisoners; and (c) providing for the treatment of prisoners, or any particular class of prisoners, other than remand or contempt prisoners; and (e) regulating the conduct of prisoners, or of prisoners of a particular class; and (eaa) prohibiting, restricting or regulating the supply or administration to prisoners of drugs (including prescription drugs under the Controlled Substances Act 1984); and (ea) for the purposes of section 37AA, including regulations— (i) prescribing procedures for drug testing; and (ii) regulating the collection of biological samples from prisoners for the purposes of drug testing; and (iii) prescribing the directions that can be given to a prisoner for the purpose of conducting an alcotest or collecting and authenticating a biological sample; and (iv) prescribing higher maxima for the penalties prescribed by sections 43 and 44 if a prisoner breaches regulations made under this subsection, provided that those higher maxima do not exceed by more than 3 times the maxima prescribed in those sections; and (f) prescribing the practice and procedure, and any powers, of Visiting Tribunals; and (g) prescribing the practice and procedure, and any powers, of the CE in dealing with breaches of the regulations; and (h) prescribing the duties of officers or employees of the Department or members of the police force employed in correctional institutions; and (ha) regulating the times at which and procedure by which persons may be admitted to correctional institutions for detention; and (i) prescribing the weapons or any other thing that may be carried or used by officers or employees of the Department or police officers employed in correctional institutions, and the purposes for which and the manner in which any such weapon or thing may, or may not, be used; and (j) prohibiting or regulating the holding or investing of money by or on behalf of prisoners, or of prisoners of a particular class; and (ja) prohibiting, restricting or regulating the holding or acquisition of personal property (other than money) of prisoners, or of prisoners of a particular class, (including the transfer, storage or disposal of such property); and (jb) prescribing matters to be included in applications and notices under Part 7; and (ka) prohibiting, restricting or regulating the entering into of contracts between prisoners; and (l) prescribing directions that community corrections officers may give to persons under their supervision while on parole; and (m) imposing fines, not exceeding $5 000, for offences against the regulations. (3) Regulations under this Act may— (a) be of general application or limited application; and (b) make different provision according to the persons, things or circumstances to which they are expressed to apply; and (c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the CE; and (d) include evidentiary provisions to facilitate proof of contraventions of the regulations for the purposes of proceedings for offences.