Inspector of Custodial Services Act 2003 (Western Australia)

This Act creates and governs an independent inspection agency for places where prisoners, detainees and other persons in custody are held in Western Australia. It continues the office of the Inspector of Custodial Services (s 5), sets out how the Inspector is appointed and removed (ss 6, 9), defines the Inspector’s staff and reporting obligations (ss 16, 33, 34) and prescribes mandatory inspection, review and reporting powers and procedures (ss 19-25, 27-37). The Act grants broad, express access powers to the Inspector and authorised persons to enter and inspect prisons, detention centres, court custody centres and lock‑ups, to interview persons in custody and staff, to inspect vehicles used for transport and to inspect documents in the possession of government departments, contractors and subcontractors that relate to those places or custodial services (ss 28-30). The Inspector must prepare inspection reports and may make recommendations and give advice following inspections and reviews (ss 20, 21, 22, 23).

The Act establishes obligations about consultation and procedural fairness before the Inspector publishes material that is critical of a department, contractor or other person (s 37). It provides for an independent visitor service for prisons and detention centres, appointing independent prison visitors and independent detention centre visitors whose duties include quarterly visits and reporting complaints to the Inspector (ss 39-43). The Act sets out confidentiality rules and limited disclosure channels for Inspector information, including express provisions allowing disclosure to the Corruption and Crime Commission, the Director of Public Prosecutions and the Parliamentary Commissioner for Administrative Investigations (ss 44-46). It creates offences with monetary penalties and imprisonment for hindering inspectors, providing false or misleading information, victimisation of witnesses or disclosure of confidential information (ss 32, 47-50).

CrestWestern Australia

Inspector of Custodial Services Act 2003

Western Australia

Inspector of Custodial Services Act 2003

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Notes not part of law 4

Part 2 — Office of Inspector

Division 1 — Inspector

Office of Inspector continued 5
Appointment of Inspector 5
Conditions of appointment 5
Oath or affirmation 6
Removal of Inspector from office 6
Portability of superannuation and other entitlements 7

Division 2 — Acting appointments

Acting appointments made by Governor 7
Acting appointments made by Inspector 8
Matters relevant to all acting appointments 8
Acting Inspector: functions etc. 8
Savings 8

Division 3 — Staff

Staff 9

Part 3 — Relationship with Minister

Directions of Minister 10
Minister to have access to information 10

Part 4 — Functions and powers of Inspector

Division 1 — Functions

Inspection of places: mandatory 12
Inspection report 12
Inspection of places: occasional 12
Review of custodial services: occasional 12
Reporting on occasional inspections and reviews 13
Providing reports, draft inspection reports to interested persons 13
Notifications 13
Relationship of Inspector’s functions to other laws 14

Division 2 — Powers

Powers of Inspector 15
Access to prisons etc. 15
Access to detention centres etc. 16
Access to court custody centres, lock‑ups etc. 16
Matters relevant to access powers 18
Offence to hinder etc. persons exercising access powers 19

33A. Inspector may give chief executive officer or CEO show cause notice 19

Part 5 — Reporting

Annual reporting 21
Inspection reports and reports of occasional inspections and reviews 22
Laying before Parliament annual reports, inspection reports and reports of occasional inspections and reviews 23
Chief judicial officers to receive copy of inspection reports, reports of occasional inspections and reviews affecting court 24
Submissions in certain cases before completion of reports 24
Reporting requirements under Financial Management Act 2006 25

Part 6 — Independent visitor service

Appointment of independent prison visitors 26
Duties of independent prison visitors 26
Appointment of independent detention centre visitors 27
Duties of independent detention centre visitors 27
Inspector to deal with reports of independent prison visitors and independent detention centre visitors 28

Part 7 — Disclosure of information

Disclosure of information permitted for consultation purposes 29
Disclosure of certain other information permitted 29
Disclosure of information permitted if in certain interests to do so 30
Confidentiality 31
Directions to not disclose information 31

Part 8 — Other offences

Hindering and other offences 32
Victimisation 33

Part 9 — Miscellaneous

Security and safety considerations 34
Protection from liability 34
Documents sent to or by the Inspector not admissible 34
Protection for proceedings in Cabinet 35
Regulations 35
Amendment of the Prisons Regulations 1982 35
Savings and transitional provisions 35

Schedule 1 — Application of Financial Management Act 2006 to office of the Inspector

Division 2 — Reports by accountable authority of office of Inspector of Custodial Services

Reports by accountable authority of office of Inspector of Custodial Services 36
Financial statements 37
Accountable authority to submit financial reports and other information 37

Schedule 3 — Savings and transitional

Terms used 39
Interpretation Act 1984 applies 39
Persons holding offices under, or employed etc. for purposes of repealed provisions 39
Reporting 40
Calculating maximum period between inspections for first inspection of a place under this Act 40
Independent prison visitors and independent detention centre visitors 40

Notes

Compilation table 42

Defined terms

Western Australia

Inspector of Custodial Services Act 2003

An Act to provide for an independent agency to inspect certain places where prisoners, detainees or other persons in custody are held and to review certain custodial services, to provide for an independent visitor service for prisons and detention centres, to consequentially amend various Acts and regulations 2, and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Inspector of Custodial Services Act 2003 1.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent 1.

3. Terms used

In this Act, unless the contrary intention appears —

CEO has the meaning giving to that term in the Court Security and Custodial Services Act 1999 section 3;

chief judicial officer of a court has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3;

court custodial services has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3;

court custody centre has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3;

court premises has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3;

custodial service, in relation to a detention centre, means —

(a) the management, control or security of the centre; or

(b) the security, control, safety, care or welfare of detainees at the centre,

and includes an administrative arrangement in relation to a matter mentioned in paragraph (a) or (b);

custodial service, in relation to a prison, means —

(a) the management, control or security of the prison; or

(b) the security, control, safety, care or welfare of prisoners committed to the prison,

and includes an administrative arrangement in relation to a matter mentioned in paragraph (a) or (b);

custodial service (CSCS Act) has the meaning given to “custodial service” in the Court Security and Custodial Services Act 1999 section 3 and includes an administrative arrangement in relation to such a matter;

detainee means a person who is detained in a detention centre;

detention centre has the same meaning as it has in the Young Offenders Act 1994 section 3 and includes any other place where a detainee is detained under that Act that is managed or otherwise controlled by the chief executive officer as defined in that section;

independent detention centre visitor means a person appointed under section 41 to be an independent detention centre visitor;

independent prison visitor means a person appointed under section 39 to be an independent prison visitor;

inspection report means a report under section 20;

Inspector means the holder of the office of Inspector of Custodial Services continued by section 5;

lock‑up has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3;

Note for this definition:

	***lock‑up*** in this Act does not include a lock‑up that is managed or controlled by the Commissioner of Police.

person in custody means —

(a) a person in custody as defined in the Court Security and Custodial Services Act 1999 section 3 for whom the CEO is responsible under that Act; or

(b) an intoxicated detainee as defined in the Court Security and Custodial Services Act 1999 section 3 for whom the CEO is responsible under that Act;

prison has the meaning given to that term in the Prisons Act 1981 section 3(1) and includes any other place where a prisoner is confined or kept under that Act that is managed or otherwise controlled by the chief executive officer as defined in that section;

prisoner has the meaning given to that term in the Prisons Act 1981 section 3(1);

public service officer has the meaning given to that term in the Public Sector Management Act 1994 section 3(1);

staff, in relation to the Inspector, means a person referred to in section 16(1), (2) or (3).

4. Notes not part of law

Notes in this Act are provided to assist understanding and do not form part of the Act.

Part 2 — Office of Inspector

Division 1 — Inspector

5. Office of Inspector continued

The office of Inspector of Custodial Services created by the Prisons Act 1981 section 109A is continued.

6. Appointment of Inspector

(1) The Governor is to appoint an appropriately qualified person to the office of Inspector.

(2) The Public Sector Management Act 1994 does not apply to, or in relation to, the appointment of the Inspector and the Inspector is not subject to that Act.

(3) Subject to this Act, the Inspector holds office for such term of not more than 7 years as is specified in the appointment and is eligible for reappointment for one or more terms each of not more than 7 years.

(4) A person who is or has been within the preceding 3 years a member of the Parliament of the Commonwealth or any State or Territory cannot be appointed as Inspector.

7. Conditions of appointment

(1) The Inspector —

(a) is to be paid salary and allowances at the yearly rates that are determined by the Salaries and Allowances Tribunal established by the Salaries and Allowances Act 1975; and

(b) has the leave and other entitlements that are determined by the Governor and which cannot be reduced during a term of appointment.

(2) The salary and allowances payable to the Inspector are to be charged to the Consolidated Account and this subsection appropriates the Consolidated Account accordingly.

[Section 7 amended: No. 77 of 2006 s. 4.]

8. Oath or affirmation

(1) Before performing the functions of his or her office the Inspector is to take an oath or affirmation that he or she will faithfully and impartially perform the duties of the office, and that he or she will not, except in accordance with this Act, divulge any information received by him or her under this Act or any other law.

(2) The oath or affirmation is to be administered by the Governor.

9. Removal of Inspector from office

(1) The Governor may remove the Inspector from office —

(a) for —

(i) misbehaviour or incompetence; or

(ii) physical or mental incapacity, other than temporary illness, impairing the performance of the Inspector’s functions;

(b) if the Inspector is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws.

(2) In subsection (1)(a)(i) —

misbehaviour includes conduct that renders the Inspector unfit to hold office as Inspector even though the conduct does not relate to any function of the office.

[Section 9 amended: No. 18 of 2009 s. 46.]

10. Portability of superannuation and other entitlements

(1) If a public service officer is appointed to the office of Inspector he or she is entitled to retain all existing and accruing rights, including those as to superannuation, as if his or her service in that office were a continuation of his or her service as a public service officer.

(2) If a person ceases to hold the office of Inspector and becomes a public service officer, his or her service in that office is to be regarded as service in the Public Service for the purposes of determining his or her rights, including those as to superannuation, as a public service officer.

(3) If —

(a) immediately before his or her appointment the Inspector occupied an office under the Public Sector Management Act 1994 Part 3; and

(b) his or her term of office as Inspector expires by effluxion of time and he or she is not reappointed,

that person is entitled to be appointed to an office under the Public Sector Management Act 1994 Part 3 that is not lower in status than the office which he or she occupied immediately before the appointment to the office of Inspector.

Division 2 — Acting appointments

11. Acting appointments made by Governor

The Governor may appoint a person to act in the office of the Inspector —

(a) during a vacancy in the office; or

(b) during any period or during all periods when the person holding or appointed to act in that office is absent from duty or is for any other reason unable to perform the functions of the office.

12. Acting appointments made by Inspector

(1) If the Governor has not appointed a person under section 11 the Inspector may appoint a person to act in the office of the Inspector in the circumstances referred to in section 11(b) —

(a) for not more than 4 weeks at a time; and

(b) for not more than 6 weeks in a 12 month period.

(2) If the Inspector appoints a person under subsection (1) and the Governor later appoints a person under section 11 whose term of appointment is to begin before the term of the Inspector’s appointee has ended, the term of appointment of the Inspector’s appointee has no effect on and from the day when the term of the Governor’s appointee begins.

13. Matters relevant to all acting appointments

(1) A person who is or has been within the preceding 3 years a member of the Parliament of the Commonwealth or any State or Territory cannot be appointed to act in the office of Inspector.

(2) An appointment under section 11 or 12 may be made at any time and may be expressed to have effect only in the circumstances specified in the instrument of appointment.

14. Acting Inspector: functions etc.

A person who is acting in the office of Inspector is to perform all the Inspector’s functions and, when performing those functions, is subject to all relevant provisions of this Act and any other law applying to the Inspector.

15. Savings

The validity of anything done by or in relation to a person purporting to act in the office of Inspector under an appointment made under section 11 or 12 cannot be called in question on the ground that —

(a) the occasion for the appointment had not arisen; or

(b) there is a defect or irregularity in the appointment; or

(d) the occasion for the person to act had not arisen or had ceased.

Division 3 — Staff

16. Staff

(1) The staff necessary for the performance of the Inspector’s functions are to be appointed under the Public Sector Management Act 1994 Part 3.

(2) A person may be appointed or engaged for the purpose of giving expert advice or other assistance in relation to the performance of the Inspector’s functions.

(3) The Inspector may by arrangement with the relevant employer make use, either full‑time or part‑time, of the services of any officer or employee —

(a) in the Public Service; or

(b) in a State agency or instrumentality; or

(4) The Inspector may by arrangement with —

(a) a department of the Public Service; or

(b) a State agency or instrumentality,

make use of any facilities of the department, agency or instrumentality.

(5) An arrangement under subsection (3) or (4) is to be made on such terms as are agreed to by the parties.

Part 3 — Relationship with Minister

17. Directions of Minister

(1) Except as provided in this section, the Inspector is not subject to direction by the Minister or any other person in the performance of the Inspector’s functions.

(2) The Minister may, in writing, direct the Inspector to —

(a) inspect a prison, detention centre, court custody centre or lock‑up;

(b) to review a custodial service in relation to a prison or detention centre or a custodial service (CSCS Act) or an aspect of that service,

and report on a specified matter of significance.

(3) The Minister, after consultation with the Inspector, may issue to the Inspector written directions as to the performance of any of the Inspector’s functions but a direction cannot be issued in respect of a particular case.

(4) The text of each direction under subsection (2) or (3) is to be included in the Inspector’s annual report under section 33.

(5) The Inspector must comply with a direction under subsection (2) or (3) unless, in the Inspector’s opinion, there are exceptional circumstances for not complying.

(6) If the Inspector refuses to comply with a direction under subsection (2) or (3) he or she must prepare written reasons for the failure to comply and cause the text of those reasons to be included in the Inspector’s annual report under section 33.

18. Minister to have access to information

(1) Subject to this section the Minister is entitled —

(a) to have information in the possession of the Inspector; and

(b) where the information is in or on a document, to have, and make and retain copies of, that document.

(2) For the purposes of subsection (1) the Minister may —

(a) request the Inspector to furnish information to the Minister;

(b) request the Inspector to give the Minister access to information;

(c) for the purposes of paragraph (b) make use of the Inspector’s staff to obtain the information and furnish it to the Minister.

(3) The Inspector must comply with a request under subsection (2) and make his or her staff and facilities available to the Minister for the purposes of subsection (2)(c) unless, in the Inspector’s opinion, it would not be in the public interest to provide the information.

(4) If the Inspector refuses to comply with a request under subsection (2) he or she must prepare written reasons for the failure to comply and cause the text of those reasons to be included in the Inspector’s annual report under section 33.

(5) In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored;

information means information specified, or of a description specified, by the Minister that relates to the Inspector’s functions.

Part 4 — Functions and powers of Inspector

Division 1 — Functions

19. Inspection of places: mandatory

At least once every 3 years the Inspector is to inspect each —

(a) prison; and

(b) detention centre; and

(d) lock‑up.

20. Inspection report

(1) The Inspector is to prepare an inspection report on his or her findings in relation to each inspection under section 19.

(2) An inspection report may contain such advice or recommendations as the Inspector considers appropriate in relation to the findings.

21. Inspection of places: occasional

In addition to the requirement to inspect a place under section 19, the Inspector may inspect the place at any other time and on any number of occasions.

22. Review of custodial services: occasional

(1) The Inspector may, at any time, review any of the following or any aspect of the following —

(a) a custodial service in relation to a prison;

(b) a custodial service in relation to a detention centre;

(2) Without limiting subsection (1), a review may be carried out under that subsection of the following or any aspect of the following —

(a) a custodial service in relation to one or more particular prisoners;

(b) a custodial service in relation to one or more particular detainees;

[Section 22 amended: No. 52 of 2011 s. 4.]

23. Reporting on occasional inspections and reviews

The Inspector may, at any time, report to the Minister on any matter relating to an inspection under section 21 or a review under section 22 and give advice or make recommendations as the Inspector considers appropriate in relation to the matter.

24. Providing reports, draft inspection reports to interested persons

The Inspector may, at any time, deliver to the Minister or any other person having an interest in the subject matter of the document —

(a) a draft inspection report; or

(b) a report prepared by the Inspector on a matter relating to an inspection under section 21 or a review under section 22.

25. Notifications

(1) Subject to subsection (2), it is not necessary for any person to be given notice of the Inspector’s intention to perform any of the Inspector’s functions.

(2) The Inspector is to give, within a reasonable time, the chief judicial officer of a court written notice of the Inspector’s intention —

(a) to inspect a court custody centre that is part of the court premises; or

(b) to review any court custodial services, or any aspect of court custodial services, affecting the court.

(3) The Inspector is to consult the chief judicial officer of a court in relation to —

(a) an inspection of a court custody centre that is part of the court premises; and

(b) a review of any court custodial services, or any aspect of court custodial services, affecting the court.

26. Relationship of Inspector’s functions to other laws

(1) The Inspector is to ensure that the performance of any of the Inspector’s functions is not likely to delay, interfere with or duplicate —

(a) an inquiry under the Prisons Act 1981 section 9; or

(b) an inquiry under the Court Security and Custodial Services Act 1999 section 44; or

(c) an investigation, inquiry or other action taken by the Corruption and Crime Commission or Public Sector Commissioner under the Corruption, Crime and Misconduct Act 2003; or

(d) an investigation by the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971.

(2) The Inspector may refer a complaint or grievance concerning a particular individual to the Parliamentary Commissioner for Administrative Investigations or any other government agency having a function to deal with the matter but it is not a function of the Inspector to deal with the matter other than —

(a) to inform the complainant of the role of the Inspector; or

(b) to deal with the matter in the context of an inspection of a place or a review of a custodial service.

[Section 26 amended: No. 8 of 2009 s. 78(2); No. 35 of 2014 s. 34.]

Division 2 — Powers

27. Powers of Inspector

The Inspector has power to do all things necessary or convenient to be done for or in connection with the performance of the Inspector’s functions.

28. Access to prisons etc.

(1) For the purpose of performing the Inspector’s functions under section 19(a), section 21 in relation to a prison, or section 22(1)(a) or (2)(a), the Inspector or any person authorised by the Inspector, at any time and with any assistants and equipment that the Inspector or authorised person thinks are necessary, may have free and unfettered access to —

(a) a prison or any part of a prison; and

(b) a prisoner in a prison; and

(d) a vehicle used to transport prisoners; and

(e) a prisoner in such a vehicle; and

(f) a person whose work is concerned with such a vehicle; and

(g) all documents in the possession of the Department in relation to a prison or to a custodial service in relation to a prison or to a person who is, or has been, a prisoner; and

(h) all documents in the possession of a contractor or a subcontractor in relation to —

(i) a prison that is a subject of a contract; or

(ii) a custodial service in relation to a prison that is a subject of a contract; or

(iii) a person who is, or has been, a prisoner in a prison that is a subject of a contract.

(2) In subsection (1) —

contract, contractor, Department and subcontractor each has the meaning given to that term in the Prisons Act 1981 section 3(1).

[Section 28 amended: No. 52 of 2011 s. 5.]

29. Access to detention centres etc.

(1) For the purpose of performing the Inspector’s functions under section 19(b), section 21 in relation to a detention centre, or section 22(1)(b) or (2)(b), the Inspector or any person authorised by the Inspector, at any time and with any assistants and equipment that the Inspector or authorised person thinks are necessary, may have free and unfettered access to —

(a) a detention centre or any part of a detention centre; and

(b) a detainee in a detention centre; and

(d) a vehicle used to transport detainees; and

(e) a detainee in such a vehicle; and

(f) a person whose work is concerned with such a vehicle; and

(g) all documents in the possession of the Department in relation to a detention centre or to a custodial service in relation to a detention centre or to a person who is, or has been, a detainee.

(2) In subsection (1) —

Department has the meaning given to that term in the Young Offenders Act 1994 section 3.

[Section 29 amended: No. 52 of 2011 s. 6.]

30. Access to court custody centres, lock‑ups etc.

(1) For the purpose of performing the Inspector’s functions under section 19(c) or (d), section 21 in relation to a court custody centre or lock‑up, or section 22(1)(c) or (2)(c), the Inspector or any person authorised by the Inspector, at any time and with any assistants and equipment that the Inspector or authorised person thinks are necessary, may have free and unfettered access to —

(a) a court custody centre, a lock‑up or any part of such a place; and

(b) a person in custody in a court custody centre or lock‑up; and

(d) a vehicle used for moving persons for whom the CEO is responsible under the Court Security and Custodial Services Act 1999 section 16; and

(e) a person in custody in such a vehicle; and

(f) a person whose work is concerned with such a vehicle; and

(g) all documents in the possession of the Department in relation to a court custody centre or lock‑up or a custodial service (CSCS Act) or to a person who is, or has been, a person in custody —

(i) in a court custody centre or lock‑up; or

(ii) in a vehicle described in paragraph (d); or

(iii) in relation to whom a custodial service (CSCS Act) is, or has been, provided;

and

(h) all documents in the possession of a contractor or a subcontractor in relation to —

(i) a court custody centre or lock‑up that is a subject of a contract; or

(ii) a custodial service (CSCS Act) that is a subject of a contract; or

(iii) a person who is, or has been, a person in custody —

(I) in a court custody centre or lock‑up that is a subject of a contract; or

(II) in a vehicle described in paragraph (d); or

(III) in relation to whom a custodial service (CSCS Act) that is a subject of a contract is, or has been, provided.

(2) In subsection (1) —

contract, contractor, Department and subcontractor each has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3.

[Section 30 amended: No. 52 of 2011 s. 7.]

31. Matters relevant to access powers

(1) The Inspector may authorise a person for the purposes of section 28(1), 29(1) or 30(1).

(2) An authorisation must be in writing and may be made subject to such conditions and limitations specified in the authorisation as the Inspector thinks fit.

(3) The Inspector may revoke an authorisation if the Inspector considers it appropriate to do so.

(4) Without limiting subsection (3), the Minister may revoke a person’s authorisation if the person has adversely affected, or is likely to adversely affect —

(a) the good order or the security of a prison, detention centre, court custody centre or lock‑up, or vehicle referred to in section 28(1)(d), 29(1)(d) or 30(1)(d); or

(b) the safety of any person at such a place or in such a vehicle or whose work is connected with such a place or vehicle.

(5) Nothing in this section or in section 28, 29 or 30 limits any entitlement that a person has, under a written law, to have access to a place, vehicle, person or document referred to in those sections.

(6) A power under a written law to ban a person from visiting a prison, detention centre, court custody centre or lock‑up cannot be exercised in respect of the Inspector or any person who is authorised for the purposes of section 28(1), 29(1) or 30(1).

32. Offence to hinder etc. persons exercising access powers

A person must not hinder or resist another person who is exercising or attempting to exercise a power under section 28(1), 29(1) or 30(1) if the other person is —

(a) the Inspector; or

(b) a person authorised by the Inspector for the purposes of the relevant provision; or

Penalty: $20 000.

33A. Inspector may give chief executive officer or CEO show cause notice

(1) In this section —

responsible officer means —

(a) in relation to a prisoner — the chief executive officer as defined in the Prisons Act 1981 section 3(1); or

(b) in relation to a detainee — the chief executive officer as defined in the Young Offenders Act 1994 section 3; or

(2) Subsection (3) applies if the Inspector suspects on reasonable grounds —

(a) that there is, or has been, a serious risk to the security, control, safety, care or welfare of a prisoner, detainee or person in custody; or

(b) that a prisoner, detainee or person in custody is being, or has been, subjected to cruel, inhuman or degrading treatment.

(3) The Inspector may give the responsible officer a written notice (a show cause notice) —

(a) specifying the matters in relation to which subsection (2)(a) or (b) applies; and

(b) requiring the responsible officer to show cause why the Inspector should not refer those matters to the Minister.

(4) The show cause notice must specify a period of at least 3 days within which the notice must be complied with.

(5) The responsible officer may, within the period specified in the show cause notice, make submissions, either orally or in writing, or provide evidence to the Inspector with respect to the matters specified in the notice.

(6) Having considered any submissions made or evidence provided under subsection (5), the Inspector —

(a) may refer any matter specified in the show cause notice to the Minister; or

(b) may decide to take no further action with respect to the matter.

(7) If the Inspector refers a matter to the Minister under subsection (6)(a), the Inspector must give advice or make recommendations to the Minister as the Inspector considers appropriate in relation to the matter.

(8) The Inspector may, by written notice given to the responsible officer, withdraw a show cause notice.

[Section 33A inserted: No. 52 of 2011 s. 8.]

Part 5 — Reporting

33. Annual reporting

(1) The Inspector, as soon as is practicable in each year but not later than 30 September, is to deliver a copy of the report referred to in subsection (2) to each of —

(a) the Speaker of the Legislative Assembly and the President of the Legislative Council who are to keep the copies of the report in safe custody; and

(b) the Minister, who may prepare a response to the report.

(2) The report, copies of which are to be delivered under subsection (1), is a report on the performance of the Inspector’s functions for the period of 12 months ending on the preceding 30 June, including —

(a) if the Financial Management Act 2006 and the Auditor General Act 2006 apply at the particular time to the office of the Inspector —

(i) the annual report required under Part 5 Division 2 of the Financial Management Act 2006 as that Division applies in respect of the office under section 38 of this Act; and

(ii) the opinion prepared and signed by the Auditor General under the Auditor General Act 2006 section 15 (if applicable) on the financial statements and other information submitted for that period under the Financial Management Act 2006 section 63 as that section applies in respect of the office under section 38 of this Act;

and

(b) the text of the directions given under section 17(2) and (3) in that period; and

(d) a list of the places referred to in section 19 that have been inspected since the preceding 30 June, noting the day on which the list was prepared; and

(e) a list of the places referred to in section 19 that are proposed to be inspected in the period up to the next 30 June; and

(f) if the Inspector considers it appropriate to include those details in the report — details of any show cause notice given under section 33A(3) in the period of 12 months ending on the preceding 30 June.

(3A) If, under subsection (2)(f), the Inspector includes in the report details of a show cause notice, the Inspector must also include details of any submissions made or evidence provided to the Inspector under section 33A(5) with respect to the matters specified in the notice.

(3B) If the Inspector considers it appropriate to do so because of the extent of the submissions made or evidence provided to the Inspector under section 33A(5), the Inspector may comply with subsection (3A) by including in the report a summary of those submissions or that evidence.

(3) If the Inspector is not able to cause to be prepared by 30 September in a year a report referred to in subsection (2) the Inspector, by that date, is to inform both Houses of Parliament of the inability to do so and the reasons for that inability.

[Section 33 amended: No. 5 of 2005 s. 41(2); No. 77 of 2006 Sch. 1 cl. 90(1); No. 52 of 2011 s. 9.]

34. Inspection reports and reports of occasional inspections and reviews

(1) As soon as is practicable after the completion of an inspection report, but not before the expiry of a reasonable period for submissions to be made under section 37 if applicable, the Inspector is to deliver a copy of the inspection report to each of —

(a) the Speaker of the Legislative Assembly and the President of the Legislative Council who are to keep the copies of the inspection report in safe custody; and

(b) the Minister, who may prepare a response to the inspection report.

(2) Subsection (1) also applies to a report —

(a) prepared on a matter relating to an inspection under section 21 or a review under section 22; and

(b) that, in the Inspector’s opinion, should be laid before the Houses of Parliament.

35. Laying before Parliament annual reports, inspection reports and reports of occasional inspections and reviews

(1) The Speaker and the President are to lay each document delivered under section 33 or 34 before their respective Houses of Parliament —

(a) not before 30 days after the document is delivered; and

(b) as soon as practicable after the expiration of that 30 day period.

(2) If, in relation to a document required by subsection (1) to be laid before a House of Parliament —

(a) a House is not sitting on the day when the 30 day period referred to in subsection (1) expires in relation to the document; and

(b) the document has not been laid before that House; and

(c) the Inspector is of the opinion that that House will not sit during a period after that day that is reasonable having regard to the contents of the document,

the Inspector is to transmit a copy of the document to the Clerk of that House.

(3) A copy of a document transmitted to the Clerk of a House is to be regarded as having been laid before that House.

(4) The laying of a copy of a document that is regarded as having occurred under subsection (3) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

36. Chief judicial officers to receive copy of inspection reports, reports of occasional inspections and reviews affecting court

(1) If, under section 34, the Inspector delivers to the Speaker of the Legislative Assembly and the President of the Legislative Council —

(a) an inspection report concerning a court custody centre; or

(b) a report prepared by the Inspector on a matter relating to an inspection of a court custody centre under section 21 or a review of any court custodial services under section 22(1)(c) or (2)(c),

the Inspector is to ensure that a copy of the report is delivered as soon as practicable to the chief judicial officer of the relevant court.

(2) A chief judicial officer who receives a report under subsection (1) may prepare a response to the report.

[Section 36 amended: No. 52 of 2011 s. 10.]

37. Submissions in certain cases before completion of reports

(1) The Inspector must not, in a document referred to in section 33 or 34, disclose information or make a statement setting out an opinion that is, either expressly or impliedly, critical of the Department, a contractor or any other person unless the Inspector has complied with subsection (2) in relation to the matter.

(2) If the Inspector proposes to disclose information or make a statement setting out an opinion referred to in subsection (1) the Inspector must, before doing so, afford the following persons the opportunity to make submissions, either orally or in writing, in relation to the matter —

(a) if the opinion relates to a Department, the chief executive officer or the CEO as is applicable to the case;

(b) if the opinion relates to a contractor, the contractor;

(3) In this section —

chief executive officer has the meaning given to that term in the Prisons Act 1981 section 3(1) or the Young Offenders Act 1994 section 3, as is applicable to the case;

contractor has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3 or the Prisons Act 1981 section 3(1), as is applicable to the case;

Department has the meaning given to that term in the Court Security and Custodial Services Act 1999 section 3, the Prisons Act 1981 section 3(1) or the Young Offenders Act 1994 section 3, as is applicable to the case.

38. Reporting requirements under Financial Management Act 2006

If the Financial Management Act 2006 applies at a particular time to the office of the Inspector then Part 5 Division 2 of that Act is to be read as if the provisions that are set out in Schedule 1 of this Act are the provisions of that Division that apply in respect of the office.

[Section 38 amended: No. 5 of 2005 s. 41(3); No. 77 of 2006 Sch. 1 cl. 90(2).]

Part 6 — Independent visitor service

39. Appointment of independent prison visitors

(1) The Minister, after having regard to the advice of the Inspector, may for every prison appoint visitors to be known as independent prison visitors.

(2) A person is not to be appointed as an independent prison visitor for a prison where prison services are being provided under a contract if —

(a) the person has any financial interest in the contract; or

(b) the person is, or to any extent controls, manages or owns, the contractor or a subcontractor under the contract.

(3) An independent prison visitor cannot carry out the duties of a visiting justice.

(4) Appointments under this section are to be for a term of 2 years, but an independent prison visitor may resign at any time by notice in writing delivered to the Minister.

(5) In subsections (2) and (3) —

contract, contractor, prison services, subcontractor and visiting justice each has the meaning given to that term in the Prisons Act 1981 section 3(1).

40. Duties of independent prison visitors

(1) An independent prison visitor is to —

(a) visit and inspect the prison for which the visitor is appointed as soon as practicable after being appointed and thereafter at intervals of not more than 3 months; and

(b) furnish a report in writing to the Inspector after each visit and inspection made under paragraph (a); and

(c) make a record of any complaint made to the visitor by or on behalf of a prisoner and report that complaint to the Inspector.

(2) An independent prison visitor may, after a visit and inspection made under subsection (1)(a), immediately communicate directly with the Inspector, or the chief executive officer as defined in the Prisons Act 1981, if it seems desirable to make a personal report to the Inspector or the chief executive officer.

(3) An independent prison visitor must not interfere with the management of, or discipline at, the prison or give or purport to give any instructions to a person employed at the prison.

41. Appointment of independent detention centre visitors

(1) The Minister, after having regard to the advice of the Inspector, may for every detention centre appoint visitors to be known as independent detention centre visitors.

(2) An independent detention centre visitor cannot carry out the duties of a visiting justice appointed under the Young Offenders Act 1994 section 166.

(3) Appointments under this section are to be for a term of 2 years, but an independent detention centre visitor may resign at any time by notice in writing delivered to the Minister.

42. Duties of independent detention centre visitors

(1) An independent detention centre visitor is to —

(a) visit and inspect the detention centre for which the visitor is appointed as soon as practicable after being appointed and thereafter at intervals of not more than 3 months; and

(b) furnish a report in writing to the Inspector after each visit and inspection made under paragraph (a); and

(c) make a record of any complaint made to the visitor by or on behalf of a detainee and report that complaint to the Inspector.

(2) An independent detention centre visitor may, after a visit and inspection made under subsection (1)(a), immediately communicate directly with the Inspector, or the chief executive officer as defined in the Young Offenders Act 1994, if it seems desirable to make a personal report to the Inspector or the chief executive officer.

(3) An independent detention centre visitor must not interfere with the management of, or discipline at, the detention centre or give or purport to give any instructions to a person employed at the centre.

43. Inspector to deal with reports of independent prison visitors and independent detention centre visitors

(1) The Inspector —

(a) is to review each report received under section 40(1) or (2) from each independent prison visitor; and

(b) is to review each report received under section 42(1) or (2) from each independent detention centre visitor; and

(c) may seek from the chief executive officer, or the contractor for a prison that is a subject of the report, comments in relation to any matter arising from a report if the Inspector considers it appropriate to do so; and

(d) is to report to the Minister in relation to the content of, and matters arising from, the reports including the comments, if any, sought under paragraph (c); and

(e) may take such action in relation to a matter arising from a report as the Inspector is able to take under this Act.

(2) In subsection (1) —

chief executive officer and contractor each has the meaning given to that term in the Prisons Act 1981 section 3(1) or the Young Offenders Act 1994 section 3, as is applicable to the case.

Part 7 — Disclosure of information

44. Disclosure of information permitted for consultation purposes

(1) The Inspector may consult the Corruption and Crime Commission the Director of Public Prosecutions or the Parliamentary Commissioner for Administrative Investigations concerning the performance of any of the Inspector’s functions.

(2) Information obtained by the Inspector or the Inspector’s staff in the course of, or for the purpose of, the performance of a function of the Inspector may be disclosed for the purposes of a consultation under subsection (1).

[Section 44 amended: No. 8 of 2009 s. 78(3).]

45. Disclosure of certain other information permitted

A person who is the Inspector or a member of the Inspector’s staff authorised for the purposes of this section by the Inspector may disclose information obtained by the Inspector or the Inspector’s staff in the course of, or for the purpose of, the performance of a function of the Inspector if the information —

(a) is disclosed to a person who is —

(i) a member of the Corruption and Crime Commission; or

(ii) an officer or a seconded officer of the Corruption and Crime Commission authorised for the purposes of this subparagraph by the Corruption and Crime Commission,

and concerns a matter that is relevant to the functions of the Corruption and Crime Commission; or

(b) is disclosed to a person who is —

(i) the Director of Public Prosecutions; or

(ii) the Deputy Director of Public Prosecutions; or

(iii) a member of the staff of the Director of Public Prosecutions authorised for the purposes of this subparagraph by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions,

and concerns a matter that is relevant to the functions of either the Corruption and Crime Commission or the Director of Public Prosecutions; or

(i) the Parliamentary Commissioner for Administrative Investigations; or

(ii) the Deputy Parliamentary Commissioner for Administrative Investigations; or

(iii) an officer of the Parliamentary Commissioner authorised for the purposes of this subparagraph by the Parliamentary Commissioner or the Deputy Parliamentary Commissioner,

and concerns a matter that is relevant to the functions of the Parliamentary Commissioner.

[Section 45 amended: No. 8 of 2009 s. 78(4).]

46. Disclosure of information permitted if in certain interests to do so

(1) The Inspector may disclose information, or make a statement, to any person or to the public or a section of the public with respect to the performance of a function of the Inspector if, in the Inspector’s opinion, it is in the interests of any person, or is otherwise in the public interest, to disclose the information or to make the statement.

(2) If the information to be disclosed, or the statement to be made, under subsection (1) contains an opinion that is, either expressly or impliedly, critical of a department or a person, the Inspector is to notify the department or the person before disclosing the information or making the statement if it is practicable to do so.

(3) Subsection (2) does not apply if section 37(1) applies to the information or statement and section 37(2) has been complied with in relation to the information or statement.

47. Confidentiality

(1) A person must not disclose information that was obtained by the Inspector or the Inspector’s staff in the course of, or for the purpose of, performing a function of the Inspector, except —

(a) for the purposes of the performance of a function of the Inspector; or

(b) for the purposes of any proceedings for perjury or for an offence under this Act; or

(d) in other circumstances prescribed by the regulations.

Penalty: $6 000 and imprisonment for 2 years.

(2) Subsection (1) does not apply to the disclosure of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.

48. Directions to not disclose information

(1) The Inspector may in writing direct the person to whom a document is sent by the Inspector not to disclose to any other person any information contained in the document except for the purposes of the performance of a function of the Inspector to which the document relates.

(2) A person to whom a direction is given under subsection (1) must comply with the direction.

Penalty: $6 000 and imprisonment for 2 years.

Part 8 — Other offences

49. Hindering and other offences

(1) A person must not, without reasonable excuse, hinder or resist or threaten —

(a) the Inspector or a person assisting the Inspector in the performance or attempted performance of a function of the Inspector; or

(b) a person authorised by the Inspector for the purposes of section 28(1), 29(1) or 30(1), or a person assisting such an authorised person, in the performance or attempted performance of a function of the person under the respective provision.

(2) A person must not make a statement that the person knows to be false or misleading to —

(a) the Inspector or a person assisting the Inspector in the performance or attempted performance of a function of the Inspector; or

(3) A person must not deliberately mislead or attempt to mislead —

(a) the Inspector or a person assisting the Inspector in the performance or attempted performance of a function of the Inspector; or

Penalty applicable to subsections (1), (2) and (3): $6 000 and imprisonment for 12 months.

50. Victimisation

(1) A person must not —

(a) prejudice, or threaten to prejudice, the safety or career of; or

(b) intimidate or harass, or threaten to intimidate or harass; or

another person because the other person —

(d) has provided, is providing or will or may in the future provide information to the Inspector in the performance of a function of the Inspector; or

(e) has performed a function of the Inspector in relation to the other person or is performing, or will or may in the future perform, any such function.

Penalty: $8 000 or imprisonment for 2 years.

(2) A person who attempts to commit an offence under subsection (1) commits an offence and is liable to the penalty set out in subsection (1).

(3) A person who —

(a) intends that an offence under subsection (1) be committed; and

(b) incites another person to commit the offence,

commits an offence and is liable to the penalty set out in subsection (1).

Part 9 — Miscellaneous

51. Security and safety considerations

When performing a function under this Act a person is to have regard to —

(a) the good order and the security of a prison, detention centre, court custody centre or lock‑up, or vehicle referred to in section 28(1)(d), 29(1)(d) or 30(1)(d); and

(b) the safety of any person at such a place or in or near such a vehicle or whose work is connected with such a place or vehicle.

52. Protection from liability

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The Crown is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (1).

(3) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.

(4) In this section, a reference to the doing of anything includes a reference to the omission to do anything.

53. Documents sent to or by the Inspector not admissible

Any document that is sent to the Inspector or the Inspector’s staff or by the Inspector or the Inspector’s staff —

(a) in the course of, or for the purposes of, the performance of a function of the Inspector; and

(b) that was prepared specifically for the purposes of the performance of the function,

is privileged and is not admissible in evidence in any proceedings other than proceedings for perjury or for an offence under this Act alleged to have been committed in relation to the performance of the function.

54. Protection for proceedings in Cabinet

(1) A person cannot be required or authorised under this Act —

(a) to furnish any information or answer any question relating to proceedings of Cabinet or of any committee of Cabinet; or

(b) to produce or inspect so much of any document as relates to any such proceedings.

(2) For the purposes of this section a certificate issued by the Director General, Department of the Premier and Cabinet, with the approval of the Premier of the State, certifying that any information or question, or any document or part of a document, relates to any such proceedings as are referred to in subsection (1) is conclusive of the fact so certified.

55. Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to this Act.

56. Amendment of the Prisons Regulations 1982

[(1) Omitted under the Reprints Act 1984 s. 7(4)(e).]

(2) Nothing in this Act prevents any of the Prisons Regulations 1982 from being amended in accordance with the Prisons Act 1981.

57. Savings and transitional provisions

Schedule 3 has effect in relation to the repeal, by section 56 3, of the Prisons Act 1981 Part XA and the Court Security and Custodial Services Act 1999 Part 5.

Schedule 1 — Application of Financial Management Act 2006 to office of the Inspector

[s. 38]

[Heading inserted: No. 77 of 2006 Sch. 1 cl. 90(3).]

For the purposes of section 38 of this Act, the Financial Management Act 2006 Part 5 Division 2 is to be read as follows —

Division 2 — Reports by accountable authority of office of Inspector of Custodial Services

Reports by accountable authority of office of Inspector of Custodial Services

(1) The accountable authority of the office of the Inspector of Custodial Services is to prepare, as part of the report referred to in the Inspector of Custodial Services Act 2003 section 33(2), an annual report that contains —

(a) financial statements for the relevant financial year; and

(b) key performance indicators; and

(d) any information prescribed by the Treasurer’s instructions; and

(e) if applicable, the report referred to in subsection (2).

(2) If the relevant financial year is covered by a resource agreement, the accountable authority of the office of the Inspector of Custodial Services is to include in the annual report a report on the extent to which the office achieved any objectives described in the resource agreement.

Financial statements

(1) Unless the Treasurer approves otherwise, the financial statements referred to in section 61(1)(a) are to be prepared in accordance with the accounting standards and other requirements issued by the Australian Accounting Standards Board.

(2) Without limiting subsection (1), the financial statements referred to in section 61(1)(a) —

(a) are to include any financial statements and information prescribed by the Treasurer’s instructions; and

(b) are to be certified in the manner prescribed by the Treasurer’s instructions.

(3) In subsection (1) —

Australian Accounting Standards Board means the body of that name continued in existence under the Commonwealth Australian Securities and Investments Commission Act 2001.

Accountable authority to submit financial reports and other information

The accountable authority of the office of the Inspector of Custodial Services is to submit to the Auditor General —

(a) the financial statements and key performance indicators referred to in section 61(1)(a) and (b); and

(b) any other information referred to in section 61(1)(d) that is required by the Treasurer’s instructions to be submitted to the Auditor General under this section.

[Schedule 1 inserted: No. 77 of 2006 Sch. 1 cl. 90(3).]

[Schedule 2 omitted under the Reprints Act 1984 s. 7(4)(e).]

Schedule 3 — Savings and transitional

[s. 57]

Terms used

In this Schedule —

commencement means the day on which this Act comes into operation;

repealed provisions means Part XA of the Prisons Act 1981 repealed by section 56 3.

Interpretation Act 1984 applies

This Schedule does not limit the operation of the Interpretation Act 1984.

Persons holding offices under, or employed etc. for purposes of repealed provisions

(1) A person who was —

(a) appointed as Inspector or acting Inspector; or

(b) appointed, employed or engaged as a member of the Inspector’s staff,

and whose appointment to, or employment or engagement in, that office or position was in effect immediately before commencement is to be regarded, on and after commencement, as having been appointed, employed or engaged, as the case requires, for the purposes of this Act, on the same terms and conditions, including as to remuneration, as those which applied to the person immediately before commencement.

(2) A person to whom subclause (1) applies retains all existing and accruing rights and benefits as if the holding of the office, or the appointment, employment or engagement, for the purposes of this Act, were a continuation of the person’s holding of the office, or the appointment, employment or engagement, for the purposes of the repealed provisions, immediately before commencement.

Reporting

(1) Part 5 of this Act does not apply in respect of a financial year that has ended before this Act comes into operation; and the repealed provisions continue to apply in respect of such a financial year as if the repealed provisions had not been repealed.

(2) Part 5 of this Act applies with respect to the period from 1 July in a financial year to a day that —

(a) occurs in the same financial year; and

(b) immediately precedes commencement,

as if this Act were in effect when the matters to be reported on occurred.

Calculating maximum period between inspections for first inspection of a place under this Act

(1) The 3 year period referred to in section 19 in relation to an inspection of a prison is to be calculated in the first instance from the time of the last inspection of that prison under the repealed provisions.

(2) The 3 year period referred to in section 19 in relation to an inspection of a court custody centre or a lock‑up is to be calculated in the first instance from the last inspection of that place under Part 5 of the Court Security and Custodial Services Act 1999 repealed by section 56 2.

Independent prison visitors and independent detention centre visitors

(1) A person who, immediately before commencement, was a person who had been appointed or was deemed to have been appointed to be a prison visitor under the Prisons Act 1981 section 54 is to be regarded, on and from commencement, as a person who is appointed to be an independent prison visitor under section 39 of this Act on the same terms and conditions as applied to the person’s appointment under the Prisons Act 1981 section 54.

(2) A person who, immediately before commencement, was a person who had been appointed to be a detention centre visitor under the Young Offenders Act 1994 section 166 is to be regarded, on and from commencement, as a person who is appointed to be an independent detention centre visitor under section 41 of this Act on the same terms and conditions as applied to the person’s appointment under the Young Offenders Act 1994 section 166.

dline

Notes

1 This reprint is a compilation as at 13 May 2016 of the Inspector of Custodial Services Act 2003 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Inspector of Custodial Services Act 2003	75 of 2003	15 Dec 2003	15 Dec 2003 (see s. 2)
Financial Administration Legislation Amendment Act 2005 s. 41	5 of 2005	27 Jun 2005	1 Jan 2006 (see s. 2 and Gazette 23 Dec 2005 p. 6243)
Financial Legislation Amendment and Repeal Act 2006 s. 4 and Sch. 1 cl. 90	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 1: The Inspector of Custodial Services Act 2003* as at 20 Apr 2007** (includes amendments listed above)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 78	8 of 2009	21 May 2009	22 May 2009 (see s. 2(b))
Acts Amendment (Bankruptcy) Act 2009 s. 46	18 of 2009	16 Sep 2009	17 Sep 2009 (see s. 2(b))
Inspector of Custodial Services Amendment Act 2011	52 of 2011	11 Nov 2011	s. 1 and 2: 11 Nov 2011 (see s. 2(a)); Act other than s. 1 and 2: 18 Jan 2012 (see s. 2(b) and Gazette 17 Jan 2012 p. 463)
Corruption and Crime Commission Amendment (Misconduct) Act 2014 s. 34	35 of 2014	9 Dec 2014	1 Jul 2015 (see s. 2(b) and Gazette 26 Jun 2015 p. 2235)
*Reprint 2: The Inspector of Custodial Services Act 2003* as at 13 May 2016** (includes amendments listed above)

2 The provision in this Act amending these Acts and regulations has been omitted under the Reprints Act 1984 s. 7(4)(e).

3 The provision in this Act repealing the Prisons Act 1981 Part XA has been omitted under the Reprints Act 1984 s. 7(4)(e).

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

CEO 3

chief executive officer 37(3), 43(2)

chief judicial officer of a court 3

commencement Sch. 3 cl. 1

contract 28(2), 30(2), 39(5)

contractor 28(2), 30(2), 37(3), 39(5), 43(2)

court custodial services 3

court custody centre 3

court premises 3

custodial service 3, 3

custodial service (CSCS Act) 3

Department 28(2), 29(2), 30(2), 37(3)

detainee 3

detention centre 3

document 18(5)

independent detention centre visitor 3

independent prison visitor 3

information 18(5)

inspection report 3

Inspector 3

lock‑up 3

misbehaviour 9(2)

person in custody 3

prison 3

prison services 39(5)

prisoner 3

public service officer 3

repealed provisions Sch. 3 cl. 1

responsible officer 33A(1)

show cause notice 33A(3)

staff 3

subcontractor 28(2), 30(2), 39(5)

visiting justice 39(5)

Western Australia

Inspector of Custodial Services Act 2003

Western Australia

Inspector of Custodial Services Act 2003

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Notes not part of law 4

Part 2 — Office of Inspector

Division 1 — Inspector

Office of Inspector continued 5
Appointment of Inspector 5
Conditions of appointment 5
Oath or affirmation 6
Removal of Inspector from office 6
Portability of superannuation and other entitlements 7

Division 2 — Acting appointments

Acting appointments made by Governor 7
Acting appointments made by Inspector 8
Matters relevant to all acting appointments 8
Acting Inspector: functions etc. 8
Savings 8

Division 3 — Staff

Staff 9

Part 3 — Relationship with Minister

Directions of Minister 10
Minister to have access to information 10

Part 4 — Functions and powers of Inspector

Division 1 — Functions

Inspection of places: mandatory 12
Inspection report 12
Inspection of places: occasional 12
Review of custodial services: occasional 12
Reporting on occasional inspections and reviews 13
Providing reports, draft inspection reports to interested persons 13
Notifications 13
Relationship of Inspector’s functions to other laws 14

Division 2 — Powers

The Act rests on a set of firm, recurring legal constructs: an independent Inspector with statutory inspection and review functions; broad access powers; reporting and publication controls; channels for inter‑agency disclosure; an independent visitor mechanism; and criminal and civil immunities and sanctions.

Independence and appointment. The office is a statutory office continued from earlier law and filled by Governor appointment of an "appropriately qualified person" (s 5; s 6(1)). The appointment process is excluded from the Public Sector Management Act 1994 (s 6(2)), the Inspector holds a specified term of up to 7 years (s 6(3)), and the Act proscribes certain recent politicians from appointment (s 6(4)). Removal is limited to misbehaviour, incompetence or insolvency (s 9), and an oath or affirmation is required before the Inspector acts (s 8).

Mandatory and occasional inspections and reviews. The Inspector must inspect each prison, detention centre, court custody centre and lock‑up at least once every three years (s 19). The Inspector also has non‑mandatory, discretionary rights to inspect at other times (s 21) and to review custodial services or an aspect of custodial services at any time (s 22). Inspection reports may contain advice and recommendations (s 20(2)).

Access powers. For the functions identified in s 19, s 21 and s 22 the Inspector or authorised persons may have free and unfettered access at any time, with assistants and equipment, to premises, people (including prisoners, detainees, persons in custody and staff), transport vehicles and all documents in the possession of the Department or relevant contractors/subcontractors relating to the place or custodial service (ss 28-30). The Inspector may authorise persons in writing and impose conditions; the Minister may revoke authorisation in defined circumstances (s 31).

Reporting, publication and procedural fairness. The Inspector must prepare inspection reports (s 20) and deliver them to Parliament and the Minister (ss 33-36). Where the Inspector proposes to publish material containing opinions critical of a department, contractor or other person, the Act requires that the affected person be given an opportunity to make submissions before publication (s 37). Directions given to the Inspector by the Minister and reasons for any refusal to comply must be included in the Inspector’s annual report (s 17(4), (6)). The Inspector must also provide copies of reports to relevant chief judicial officers where a court custody centre is involved (s 36).

Disclosure controls and channels. The Act specifies permitted disclosure for consultation with oversight agencies (s 44), authorised disclosure to the Corruption and Crime Commission, the Director of Public Prosecutions and the Parliamentary Commissioner for Administrative Investigations (s 45), and a broad public interest exception allowing the Inspector to disclose in the Inspector’s opinion where it is in the public interest or in the interests of any person to do so (s 46). A confidentiality offence attaches to unauthorised disclosure of information obtained for Inspector functions (s 47), subject to narrow exceptions and regulations.

Independent visitor service. The Act authorises the Minister, with the Inspector’s advice, to appoint independent prison visitors and independent detention centre visitors who must visit quarterly, report to the Inspector after each visit and record and report complaints made by prisoners and detainees (ss 39-43). The Act prevents appointment of independent prison visitors who have a financial interest in a contract providing prison services (s 39(2)) and prevents independent visitors from exercising visiting justice functions (ss 39(3), 41(2)).

Enforcement, offences and protection. The Act makes it an offence to hinder or resist persons exercising access powers and prescribes monetary and custodial penalties for hindering, misleading, victimisation and unauthorised disclosure (ss 32, 47-50). Conversely, it provides protection from tort actions for persons acting in good faith under the Act (s 52) and declares documents prepared for Inspector functions privileged and not admissible in most proceedings (s 53). Cabinet proceedings are protected from disclosure by certificate (s 54).

Financial management and administrative context. The office’s reporting and financial statements are addressed in s 38 and Schedule 1 where the Financial Management Act 2006 applies, requiring annual financial statements, key performance indicators and Auditor General involvement (Sch 1, cls 61-63). Staff are appointed under the Public Sector Management Act for operational support and expert engagement is permitted (s 16).

The Act identifies a set of institutional and private actors whose rights, duties and costs are directly affected by the statutory regime.

State agencies and departmental staff. Departments that manage or control prisons, detention centres and court custody centres are directly affected. The Act gives the Inspector free and unfettered access to premises, persons and documents in the possession of the Department in relation to a prison, detention centre, court custody centre or lock‑up (ss 28(1)(g), 29(1)(g), 30(1)(g)). That obliges Departments to make relevant material available and to facilitate inspections, subject only to the limited Cabinet exclusion and other law. Chief executive officers (CEOs) of the relevant agencies are specifically named in consultation, submission and notification duties (ss 17, 18, 25, 37, 43). Departments also bear the administrative burden of responding to requests, preparing material for inspection and possibly providing staff assistance for Ministerial access to information under s 18(2)(c).

Contractors and subcontractors. Private contractors and subcontractors who supply prison services, custodial services or court custodial services face statutory access to documents in their possession where those documents relate to a contract that subjects a place or a custodial service to contract (ss 28(1)(h), 30(1)(h)). The Inspector may inspect documents “in the possession of a contractor or a subcontractor” relating to contracted prisons, contracted custodial services or persons in custody in contracted facilities or vehicles (ss 28(1)(h), 30(1)(h)). Contractors therefore must expect disclosure and inspection of operational and administrative records and should factor that into contract performance and confidentiality planning. The Act also limits appointment of independent prison visitors for a contracted prison where the visitor has a financial interest in a contract or is connected to the contractor (s 39(2)).

Prisoners, detainees and persons in custody. They are the subjects of inspections and reviews. The Inspector has access to each prisoner, detainee or person in custody (ss 28(1)(b), 29(1)(b), 30(1)(b)). Independent visitors are required to record and report complaints by or on behalf of prisoners and detainees to the Inspector (ss 40(1)(c), 42(1)(c)). The Act affords protections to persons providing information to the Inspector by criminalising victimisation against them (s 50).

Court stakeholders and judicial officers. Court custody centres and lock‑ups are inspected (s 19(c)-(d); s 30). The Act requires written notice and consultation with chief judicial officers before inspecting court custody centres that are part of court premises and requires delivery of copies of reports to chief judicial officers where a report affects a court (ss 25(2)-(3), 36). The Act therefore creates a statutory liaison requirement between the Inspector and judicial officeholders.

Minister and Parliament. The Minister is a recipient of inspection and annual reports and may issue written directions to the Inspector to inspect or review particular matters (s 17). The Minister may also request and obtain information in the Inspector’s possession unless the Inspector considers it is not in the public interest to provide the information; refusals and directions are to be included in the Inspector’s annual report (s 18; s 33(2)(b)-(c)). Parliament receives reports: the Speaker and President are to lay the documents before their Houses after a 30 day period (ss 34-35).

Inspector’s staff and independent visitors. Staff, experts and authorised persons assist the Inspector (s 16; s 31(1)-(3)). Independent prison visitors and independent detention centre visitors are appointed by the Minister after having regard to the Inspector’s advice and have statutory visiting and reporting duties (ss 39-43).

Private actors concerned with confidentiality and commercial information. The Act’s access and reporting powers interact with commercial confidentiality and privilege considerations. Contractors should expect that information relevant to the Inspector’s functions may be inspected, and that the Inspector may disclose information in defined ways (ss 28-30; ss 44-46). Recipients of documents sent by the Inspector may be given written directions not to disclose their contents except where needed for Inspector functions (s 48); but unauthorised disclosure by third parties is an offence (s 47).

Legal advisers and compliance officers. The Act places procedural obligations on agencies, contractors and individuals to preserve rights of reply under s 37, to respond to show cause notices within time limits where the Inspector suspects serious risks (s 33A), and to avoid criminal exposure for hindering, false statements or victimisation (ss 49-50). Legal teams will need to manage submissions, confidentiality directions (s 48) and interactions with oversight agencies to which material may be disclosed (ss 44-45).

In short, the statute imposes duties and potential costs primarily on Departments, their CEOs, private contractors providing custodial services and on persons who interact with inspection activities, while providing statutory protections and reporting channels for the Inspector, independent visitors and persons who assist or give information to the Inspector.

This section lists statutory duties the Act creates and the corresponding rights that flow from the Act, with citations to the relevant provisions.

Duties of the Inspector and the office

Inspect each prison, detention centre, court custody centre and lock‑up at least once in every three years (s 19).
Prepare inspection reports and, where appropriate, include advice and recommendations (s 20(1)-(2)).
Conduct occasional inspections and reviews and report to the Minister on matters arising (ss 21-23).
Provide draft inspection reports or reports of reviews to interested persons and the Minister (s 24).
Deliver annual reports to the Speakers/Presiding Officers and the Minister by 30 September each year setting out performance, lists of inspections and ministerial directions and reasons for non‑compliance (s 33(1)-(2), (3A)-(3B)).
Afford persons and contractors an opportunity to make submissions before including critical opinions in reports (s 37(1)-(2)).

Rights and powers of the Inspector

Free and unfettered access at any time to premises, people, vehicles and documents in the possession of the Department and, where applicable, contractors/subcontractors in relation to subject prisons or custodial services (ss 28-30).
Power to do all things necessary or convenient for the performance of the Inspector’s functions (s 27).
Power to authorise persons in writing to exercise access powers and to impose conditions; power to revoke authorisations (s 31(1)-(3)).
Power to consult and disclose information to oversight agencies including the Corruption and Crime Commission, DPP and Parliamentary Commissioner (ss 44-45).
Discretion to disclose information or make statements if the Inspector considers it is in the interests of any person or otherwise in the public interest (s 46(1)).

Duties of Departments and contractors

Facilitate Inspector access to premises, persons and documents relevant to inspections and reviews (ss 28-30, 31).
Where a report will be critical of a Department, respond to submissions and make submissions when afforded an opportunity (s 37).
Where the Inspector seeks comments on independent visitor reports, provide comments as requested (s 43(1)(c)).

Duties of the Minister and rights of oversight

The Minister may direct the Inspector in writing to inspect or review a specified matter and issue written directions on the performance of Inspector functions, but not in relation to a particular case (s 17(2)-(3)).
The Minister is entitled to information in the possession of the Inspector and may request access and copies of documents, including the use of the Inspector’s staff, subject to the Inspector’s public interest discretion (s 18).

Duties related to procedural fairness and confidentiality

The Inspector must give affected Departments, contractors or persons an opportunity to make submissions before including critical opinions in reports (s 37).
Persons handling documents sent by the Inspector may be directed in writing not to disclose the document except for specified purposes (s 48).
Persons must not disclose information obtained by the Inspector’s staff, except for specified authorised purposes; breach is an offence carrying fines and imprisonment (s 47).

Duties of authorised persons and visitors

Independent prison and detention centre visitors must visit at least every three months after first visiting on appointment, report in writing after each visit and record and report complaints (ss 40-42).
Independent visitors must not interfere with management or discipline or perform visiting justice functions (ss 40(3), 41(2)).

Procedural duties triggered by suspected serious risk

If the Inspector suspects a serious risk to security, safety, care or welfare or cruel, inhuman or degrading treatment, the Inspector may issue a show cause notice to the responsible officer requiring response within at least three days; the Inspector may then refer matters to the Minister with advice or decide to take no further action (s 33A).

Rights of persons and protections

Persons acting in good faith in the performance of functions under the Act are protected from tort liability (s 52).
Documents sent to or by the Inspector in the course of Inspector functions are privileged and not admissible in evidence in proceedings, except for perjury or offences under the Act (s 53).
Cabinet proceedings are protected from disclosure and a certificate by the Director General with the Premier’s approval is conclusive (s 54).

These duties and rights define what government agencies, contractors, custodial staff, judicial officers and others must do when the Inspector exercises statutory functions, and what protections the Inspector, independent visitors and cooperating persons may rely upon.

The Act defines a range of criminal offences, civil protections and administrative enforcement mechanisms tied to the exercise and protection of the Inspector’s functions.

Statutory offences and penalties

Hindering access powers. Section 32 makes it an offence to hinder or resist persons exercising the access powers under ss 28(1), 29(1) or 30(1) if the person is the Inspector, an authorised person, or someone assisting them. The penalty is $20 000. The provision directly protects the Inspector’s statutory right of entry and inspection to premises, persons and documents (s 32).
Hindering, misleading and false statements. Section 49(1)-(3) criminalises hindrance, resistance, threats, false or misleading statements and deliberate attempts to mislead the Inspector or authorised persons carrying out functions under the Act. The penalty for these offences is $6 000 and imprisonment for 12 months.
Confidentiality breaches. Section 47 creates an offence to disclose information obtained by the Inspector or the Inspector’s staff except in authorised circumstances, with a penalty of $6 000 and imprisonment for two years. An exception is made for statistical material that cannot reasonably be expected to lead to identification (s 47(2)).
Victimisation. Section 50 makes it an offence to prejudice, intimidate or otherwise detriment a person because they have provided or may provide information to the Inspector, or have performed Inspector functions. The penalty is $8 000 or imprisonment for two years; attempts and incitement are separately penalised under ss 50(2)-(3).

Administrative enforcement and procedural remedies

Authorisation revocation. The Inspector may revoke authorisations for authorised persons; the Minister may revoke an authorisation where the authorised person has adversely affected, or is likely to adversely affect, security, good order or safety at the relevant place or vehicle (s 31(3)-(4)). Revocation is an administrative enforcement tool to protect security interests.
Show cause notices. Section 33A gives the Inspector an administrative power to require a responsible officer to show cause where the Inspector suspects a serious risk to security, safety, care or welfare, or that cruel, inhuman or degrading treatment is occurring. The responsible officer has a minimum of three days to respond; the Inspector may then refer matters to the Minister with advice or decide to take no further action (s 33A(3)-(7)). This mechanism can trigger ministerial follow up and administrative accountability.
Reporting and transparency. Directions by the Minister to the Inspector and any refusal by the Inspector to comply must be included in the Inspector’s annual report (s 17(4)-(6)). Similarly, Ministerial requests for information and any refusal by the Inspector to comply must be recorded in the annual report (s 18(3)-(4)). Those disclosure requirements are a transparency-based enforcement mechanism that exposes actions to parliamentary scrutiny.

Protections limiting enforcement against Inspectors and others

Privilege for Inspector documents. Documents sent to or by the Inspector for Inspector functions are privileged and not admissible in evidence in proceedings other than perjury or an offence under the Act (s 53). That privilege limits the use of material gathered for Inspector work in civil or criminal proceedings, thereby constraining certain enforcement avenues.
Protection from tort. Section 52 grants protection from tortious liability for persons acting in good faith in the performance or purported performance of functions under the Act, and also relieves the Crown of liability for actions done in good faith by other persons. That protection reduces civil exposure for inspectors, staff and others acting under statutory authority.
Cabinet secrecy. Section 54 excludes the requirement to produce information or answer questions that relate to Cabinet proceedings or committee proceedings; a Director General certificate with Premier approval is conclusive. That protection is an absolute statutory bar to disclosure of Cabinet matters.

Interplay between criminal offences and operational needs

The Act balances operational access and protection: it criminalises obstruction and victimisation to protect inspector functions and witnesses, while providing immunity from civil suits for good faith actions and privilege for inspector-generated documents. Departments and contractors therefore face criminal exposure for obstructive conduct and must maintain internal compliance to avoid penalties, while inspectors and authorised staff are shielded from civil suits for good faith acts.

Practical enforcement risks and triggers

The show cause power in s 33A is a rapid administrative enforcement tool that can lead to referral to the Minister; the minimum three day period for submission is short and operationally significant for responsible officers. Failure to respond or unsatisfactory submissions may lead to ministerial action informed by the Inspector’s recommendations (s 33A(6)-(7)).
Revocation of authorisations by the Minister under s 31(4) is a preventive enforcement option that can remove access rights where security or safety risks are established or anticipated.

In sum, the Act couples broad inspection and disclosure powers with criminal sanctions to protect the regime, but also embeds administrative constraints and protections for both Inspectors and inspected entities. Those rules shape the cost and compliance environment for agencies, contractors and individuals who interact with the Inspector.

The Act expressly positions the Inspector’s functions within a landscape of existing statutory regimes and oversight agencies and both constrains and enables inter‑agency cooperation.

Non‑duplication and referral obligations. Section 26 directs the Inspector to ensure that the Inspector’s functions do not delay, interfere with or duplicate specified inquiries and investigations under other Acts: inquiries under the Prisons Act 1981 s 9, the Court Security and Custodial Services Act 1999 s 44, investigations by the Corruption and Crime Commission or the Public Sector Commissioner under the Corruption, Crime and Misconduct Act 2003, and investigations by the Parliamentary Commissioner under the Parliamentary Commissioner Act 1971 (s 26(1)(a)-(d)). The Act also authorises referral of complaints concerning particular individuals to the Parliamentary Commissioner or other agencies and limits the Inspector’s role in such matters to informing complainants of the Inspector’s role or dealing with the matter within an inspection or review context (s 26(2)).

Disclosure to specified oversight agencies. Sections 44 and 45 create express disclosure channels. The Inspector may consult the Corruption and Crime Commission, the Director of Public Prosecutions or the Parliamentary Commissioner for Administrative Investigations concerning performance of Inspector functions (s 44). Section 45 authorises disclosure of information obtained in the performance of Inspector functions to specific officers and authorised persons within those agencies where the information is relevant to their functions (s 45(a)-(c)). These provisions are designed to integrate the Inspector’s findings with corruption, prosecutorial and ombudsman processes without requiring judicial process to share material.

Relationship with the Court Security and Custodial Services Act and the Prisons Act. Defined terms in s 3 cross‑refer to the Court Security and Custodial Services Act 1999 and the Prisons Act 1981 for definitions such as CEO, chief judicial officer, court custodial services, court custody centre, prison and contractor (s 3). The Inspector’s access powers to contractors and documents are defined with reference to the meanings in those Acts (ss 28(2), 30(2)). The Act also preserves some elements of the prior statutory framework via Schedule 3 savings and transitional provisions and by saving existing inspector appointments and visitor appointments (Sch 3 cl 3, cl 6).

Interaction with financial management and audit legislation. If the Financial Management Act 2006 and Auditor General Act 2006 apply to the Inspector’s office, the Act requires that Part 5 Division 2 of the FMA be read as modified by Schedule 1 to this Act (s 38). Schedule 1 prescribes the accountable authority’s obligations to prepare financial statements, key performance indicators and a report on operations as part of the annual report and to submit financial statements and KPIs to the Auditor General (Sch 1 cls 61-63). Those provisions bring the Inspector’s office within standard public sector financial transparency and auditing requirements when those Acts are applied to the office.

Cabinet secrecy and privilege. Section 54 protects Cabinet proceedings and documents from disclosure under the Act by providing that persons cannot be required to provide information relating to Cabinet or committee proceedings, with certification by the Director General and Premier being conclusive. Section 53 makes documents sent to or by the Inspector in the course of Inspector functions privileged and not admissible in evidence in most proceedings, limiting how evidence gathered under the Act may be used elsewhere.

Criminal and administrative investigatory regimes. The Act intersects with the criminal investigatory powers and adminstrative oversight regimes through s 26 references to Corruption, Crime and Misconduct Act inquiries and through the ability to disclose to prosecutorial and anti‑corruption agencies (ss 44-45). The Inspector is required to avoid interfering with such investigations and to refer matters where appropriate.

Contract law and confidentiality. The Act’s access provisions to contractor documents (ss 28(1)(h), 30(1)(h)) impinge on contractual confidentiality expectations and require that contractors and subcontractors who operate custodial services anticipate statutory inspection. While the Act recognises confidentiality and restricts unauthorised disclosure (s 47), it simultaneously authorises disclosure to specified oversight bodies and, in the Inspector’s judgement, in the public interest (s 46). Contracts that attempt to prevent statutory access would be ineffectual to the extent inconsistent with the Act.

Administrative law and ministerial direction. The Act establishes a degree of institutional independence for the Inspector by stating the Inspector is not subject to direction except as provided (s 17(1)). However, ss 17(2)-(3) permit written directions by the Minister to inspect or to report on specified matters, and the Inspector must comply unless exceptional circumstances exist; refusals and directions are to be reported (s 17(4)-(6)). This creates administrative interface points that may implicate conventional public law principles of procedural fairness and statutory interpretation where disputes arise about the scope of ministerial direction. The Act itself requires transparency about directions and refusals through the Inspector’s annual report (s 33(2)(b), s 17(4)-(6)).

In summary, the Act is deliberately drafted to align the Inspector’s activity with other oversight mechanisms while preserving certain protections for Cabinet material and Inspector‑gathered documents and embedding the office within public finance and auditing regimes where applicable. It simultaneously creates statutory access rights that take priority over contractually based confidentiality expectations and provides explicit cooperation channels to prosecutorial and anti‑corruption bodies.

The Act as provided in the compilation includes a short but material amendment history recorded in the compilation table and throughout the text. The compilation table at the end of the reprint lists amendments and reprints; the Act text also records where provisions were amended and where new provisions were inserted.

Key amendments and dates included in the reprint:

Financial Administration Legislation Amendment Act 2005 (No. 5 of 2005). This amendment is reflected in s 33 changes noted (see s 33 amended: No. 5 of 2005 s 41(2)). The 2005 amendment also affected commencement and reporting alignment with financial management statutes.
Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006). Schedule 1 and s 38 were inserted or modified to align the Inspector’s reporting and financial obligations with the Financial Management Act 2006 and Auditor General Act 2006; see Schedule 1 inserted reference. Section 7 was amended by No. 77 of 2006 s 4, altering salary and entitlements provisions.
Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009). The Act notes amendments to s 26 and other provisions (No. 8 of 2009 s 78). Sections 44 and 45 show amendments attributed to No. 8 of 2009 s 78(3)-(4), expanding disclosure provisions to oversight bodies.
Acts Amendment (Bankruptcy) Act 2009 (No. 18 of 2009). Section 9 was amended by No. 18 of 2009 s 46 to address removal of the Inspector on insolvency grounds.
Inspector of Custodial Services Amendment Act 2011 (No. 52 of 2011). Multiple sections were amended by this Act, including the expansion of access powers definitions and the insertion of s 33A (show cause notice procedure) and amendments to ss 28-30 and s 36; see references in the text indicating changes (No. 52 of 2011 s 4, s 5-10).
Corruption and Crime Commission Amendment (Misconduct) Act 2014 (No. 35 of 2014). Section 26 was amended by No. 35 of 2014 s 34 to adjust references to the Corruption and Crime Commission and the interactions with misconduct investigations.

Reprints:

Reprint 1: Inspector of Custodial Services Act 2003 as at 20 April 2007 (includes earlier amendments).
Reprint 2: Inspector of Custodial Services Act 2003 as at 13 May 2016 (includes amendments listed above).

Notable textual insertions and their functional effects

Schedule 1 (inserted by the 2006 amendments) prescribes how Part 5 Division 2 of the Financial Management Act 2006 is to be read for the Inspector’s office and creates explicit annual reporting and audit obligations (Sch 1 cls 61-63).
Section 33A was inserted by the 2011 amendments, giving the Inspector a statutory show cause power to require responsible officers to respond where serious risks to security, safety or humane treatment are suspected (s 33A).
Amendments in 2009 and 2014 adjusted references to the Corruption and Crime Commission and broadened authorised disclosure paths to align the Act with changes to anti‑corruption legislation.

Schedule 3 transitional provisions

Schedule 3 contains savings and transitional provisions relevant to the repeal of former provisions in the Prisons Act 1981 and the Court Security and Custodial Services Act 1999. It preserves existing appointments and records continuity in reporting obligations during the transitional period (Sch 3 cls 3-6).

Practical effect of amendments

The amendments progressively integrated the Inspector’s office into the State’s financial management and audit regime, clarified interactions with corruption and prosecutorial agencies, and added procedural enforcement powers such as the show cause mechanism. Changes to definitions and access powers in 2011 clarified and strengthened the Inspector’s ability to access contractor materials and to review custodial services in specific contexts.

The Act’s compilation table and in-text amendment notes provide the authoritative amendment record up to the reprint date of 13 May 2016. For any amendments beyond that date, consult updated legislation databases or the Government Gazette.

The Act text provided contains no judicial decisions, case names or litigation history. The statutory text itself does not record court challenges or judicial interpretation. The compilation table and notes list enactments, amendments and reprints, but they do not identify judicial proceedings.

Two practical consequences follow from the absence of litigation in the text:

There is no statutory record in this Act of how courts have interpreted contested provisions such as the scope of the Inspector’s access rights to contractor documents, the limits of the Minister’s direction power under s 17, the proper construction of the public interest discretion in s 18(3) or s 46(1), or the interplay between s 53 privilege and admissibility in proceedings. Any such interpretive questions would be matters for administrative and judicial review in the courts but are not resolved within the Act.
Practitioners and compliance officers should treat operational questions that raise potential legal disputes as unresolved by the statute itself and investigate current authorities and administrative practice. That includes checking whether there are decisions interpreting the scope of authorisation revocation under s 31(4), or rulings on the proper application of the confidentiality offence under s 47.

Where future litigation may arise

Given the Act’s structure, likely issues that could generate litigation (and therefore warrant searches of case law databases) include:
- Conflicts between ministerial directions under s 17 and the Inspector’s statutory independence under s 17(1).
- Disputes about the Inspector’s entitlement to contractor documents and whether particular material falls within the statutory scope in ss 28(1)(h) and 30(1)(h).
- Judicial review challenges to the Inspector’s refusal to comply with a Ministerial request under s 18 on public interest grounds.
- Challenges to revocation of authorisations on security grounds under s 31(4).
- Applications asserting breach of procedural fairness where the Inspector proposes to publish critical opinions and the person alleges insufficient opportunity under s 37.

Recommended steps for practitioners

Because the Act itself provides no litigation record, legal advisers should perform up‑to‑date searches of administrative law, criminal and appellate decisions in Western Australia and Federal courts that address the Inspector’s powers, and check Parliamentary materials or agency guidance about the Inspector’s operational practice. For actions involving contractors or significant privacy or commercial interests, obtain advice before refusing access to documents or asserting privilege.

In summary, the Act does not supply litigation history in its text. Any issues of statutory interpretation, operational compliance or constitutional interaction must be investigated by consulting subsequent case law and administrative decisions outside the statute.

This section identifies specific traps, timing constraints, procedural pitfalls, statutory inconsistencies and operational surprises that arise directly from the Act’s text and structure.

Inspector appointment sits outside standard public sector appointment rules. Section 6(2) excludes the Public Sector Management Act 1994 from applying to the appointment of the Inspector and states that the Inspector is not subject to that Act. That means regular Public Sector Management processes and review mechanisms do not apply to the Inspector’s appointment. Practitioners should note different administrative protections and appeal routes for the Inspector’s appointment and conditions of office (s 6(2)-(3); s 7).
Ministerial direction with transparency and a short compliance window. The Minister may direct inspection or review (s 17(2)-(3)), and the Inspector must comply unless exceptional circumstances exist (s 17(5)). Importantly, the text requires inclusion of the text of each direction in the annual report and the Inspector’s written reasons if the Inspector refuses (s 17(4)-(6)). That creates a public transparency obligation with political consequences. The Inspector’s discretion to refuse must be documented and published.
Broad, unannounced access powers to contractors’ documents. Sections 28(1)(h) and 30(1)(h) give the Inspector access to "all documents in the possession of a contractor or a subcontractor" where the prison or custodial service is the subject of a contract. Contractors may not foreclose that access by contract. Contractors must therefore plan for disclosure and make operational arrangements to preserve records and prepare for inspections.
Differential protections for court custody centres. The Act requires written notice to the chief judicial officer before inspecting a court custody centre that forms part of court premises and requires consultation (s 25(2)-(3)). Practitioners should not assume identical notice regimes apply to all custody centres. The requirement to consult judicial officers may introduce procedural delay or sensitivity that must be managed.
Stringent confidentiality offences with narrow exceptions. Section 47 creates a substantial criminal penalty ($6 000 and up to two years’ imprisonment) for unauthorised disclosure of information obtained by the Inspector or the Inspector’s staff. The exceptions are limited to purposes of the Inspector’s functions, perjury or an offence under the Act, authorised disclosures under ss 44-46, or prescribed circumstances in regulations (s 47(1)(a)-(d)). Statistical de‑identification is an exception (s 47(2)). Personnel handling Inspector material must be explicitly informed of these constraints.
Tension between disclosure powers and commercial confidentiality. While the Act protects confidentiality in certain ways, it simultaneously authorises disclosure to anti‑corruption and prosecutorial bodies (ss 44-45) and allows the Inspector to disclose in the public interest (s 46). Contractors and government agencies cannot rely on contractual confidentiality to bar statutory disclosure and must be ready to assert commercial‑in‑confidence claims and prepare submissions under s 37 when critical opinions are proposed.
Short timeframe for show cause process. If the Inspector suspects serious risk to safety or cruel treatment, s 33A requires a minimum three‑day period for a responsible officer to respond to a show cause notice. That is short for complex factual matters and could place operational strain on CEOs responsible for preparing submissions, gathering evidence and engaging counsel.
Authorisations can be revoked on safety grounds by the Minister. Under s 31(4), the Minister may revoke an authorisation if the person has adversely affected or is likely to adversely affect security, good order or safety. The provision permits pre‑emptive administrative exclusion of authorised inspectors or persons and may raise legal issues if exercised in contentious circumstances.
Privilege for Inspector documents limits evidentiary uses. Section 53 makes documents sent to or by the Inspector in the course of functions privileged and generally inadmissible in proceedings (other than perjury or offences under the Act). That can be a surprising constraint where evidence collected in an inspection might otherwise have been used in other proceedings.
Ministerial access to Inspector information with Inspector public interest discretion. Section 18 entitles the Minister to information in the Inspector’s possession and to copies of documents, and permits the Minister to make use of the Inspector’s staff for that purpose (s 18(1)-(2)). The Inspector must comply unless, in the Inspector’s opinion, it would not be in the public interest (s 18(3)). If the Inspector refuses, reasons must be included in the annual report (s 18(4)). The interplay of government access and Inspector discretion requires careful procedural handling and documentation.
Independent visitors cannot be visiting justices and cannot have conflicts of interest where services are contracted. Section 39(2) bars appointment of an independent prison visitor for a contracted prison if the person has any financial interest in the contract or controls the contractor; s 39(3) prevents independent prison visitors exercising visiting justice duties. These limitations may narrow the pool of eligible independent visitors.
Cabinet secrecy certificate is conclusive. Section 54(2) provides that a Director General certificate with Premier approval certifying that materials relate to Cabinet proceedings is conclusive. That absolute statutory bar can prevent the Inspector from obtaining or using certain documents, regardless of other statutory powers.

Each of these points is grounded in the statute’s text and has operational consequences. Entities interacting with inspections, and lawyers advising them, should plan record retention, confidentiality protocols, submission procedures, and rapid response systems for show cause notices and inspection events.

This section provides concrete, source‑grounded steps for government departments, chief executive officers, contractors and independent visitors to comply with the Act’s requirements and to manage risks identified in the text.

For Departments and CEOs

Prepare for access. Maintain a standing internal protocol for dealing with Inspector access to premises, persons and documents under ss 28-30. Protocols should include:
- A designated Inspector liaison officer with authority to coordinate escorts, access to documents and staff interviews.
- A secure but accessible document and records index that maps contract files, prisoner records and operational documents likely to be requested.
- Procedures to produce documents in both physical and electronic formats, including tape, disc or other media as defined by s 18(5), since the Minister may request copies of documents in the Inspector’s possession.
Manage court custody centre inspections. For inspections affecting court custody centres that are part of court premises, give the chief judicial officer the written notice required by s 25(2) within a reasonable time, and be prepared to consult under s 25(3). Plan for any special security constraints that courts may raise.
Respond to show cause notices promptly. If the Inspector issues a show cause notice under s 33A, gather evidence and prepare submissions or oral responses within the minimum three‑day period specified by s 33A(4). Allocate senior staff and legal advice to produce a timely, substantive response to avoid adverse referrals to the Minister.
Preserve procedural fairness rights. Where the Inspector indicates an intention to include critical opinion in a report, ensure the Department’s CEO submits timely written or oral submissions under s 37(2)(a). Track deadlines and maintain a formal record of submissions and supporting material.
Train staff to avoid criminal offences. Provide training on the offences in ss 32, 47-50 and 49, emphasising the penalties for hindering inspections, making false or misleading statements, victimisation and unauthorised disclosure. Ensure staff understand the reporting lines for information requested by Inspectors.
Manage confidentiality claims. If certain operational material is commercially sensitive, prepare a commercial‑in‑confidence package and legal arguments for redaction or limited disclosure, but recognise that statutory access to contractor documents (ss 28(1)(h), 30(1)(h)) cannot be contractually excluded. Coordinate with procurement and legal teams to embed clauses in contracts acknowledging statutory rights of inspection.

For Contractors and Subcontractors

Expect document inspection. Keep comprehensive records relating to any contract for prison services or custodial services, and prepare them for inspection in accordance with ss 28(1)(h) and 30(1)(h). Build this requirement into contractual performance systems and compliance budgets.
Protect sensitive commercial information. Where documents contain commercially sensitive material, prepare submissions and legal bases for limited disclosure under s 37 should the Inspector propose to publish a critical opinion that draws on contractor material. However, do not assume contractual confidentiality will bar statutory access.
Liaise through authorised channels. Use the Department’s designated liaison officer for contacts with the Inspector. Do not obstruct access; obstructive conduct risks criminal penalties under s 32 and s 49.

For Independent prison and detention centre visitors

Eligibility and conflicts. Do not accept appointment where you have financial interests in a contract providing prison services in the prison for which you would be a visitor (s 39(2)). You cannot perform visiting justice duties (s 39(3); s 41(2)).
Carry out duties to schedule. Visit as soon as practicable after appointment and then at intervals of not more than three months, prepare written reports to the Inspector after each visit and record and report complaints made by or on behalf of prisoners or detainees (ss 40(1)(a)-(c), 42(1)(a)-(c)).
Avoid management interference. Do not interfere with management, discipline or give instructions to staff (ss 40(3), 42(3)). If immediate personal reporting to the Inspector or CEO seems necessary, do so under ss 40(2) and 42(2).

For the Inspector and Inspector’s staff

Document directions and refusals carefully. If refusing Ministerial directions or Ministerial requests under ss 17 and 18, prepare written reasons and include them in the annual report as required by s 17(6) and s 18(4). Maintain a public record to satisfy the requirements in s 33(2)(b)-(c).
Manage publication risk. Before publishing material critical of a Department, contractor or person, comply with s 37 by affording an opportunity to make submissions. Where submissions are extensive, s 33(3B) allows summary inclusion in the annual report.
Use disclosure powers cautiously. When consulting or disclosing to the Corruption and Crime Commission, DPP or Parliamentary Commissioner, ensure the disclosure is relevant to their functions and documented under ss 44-45. For broader public interest disclosures under s 46, consider the s 46(2) notification requirement for persons or departments if practicable, and ensure that s 37 procedural requirements have been met where applicable.
Maintain confidentiality and give directions. Use s 48 to give written directions to recipients of Inspector documents not to disclose contents beyond Inspector function purposes. Ensure staff are aware of the criminal penalties in s 47 and the permitted exceptions set out in ss 44-46 and regulations.
Appointment and staffing compliance. Where staff are appointed under Public Sector Management Act Part 3 (s 16(1)), maintain employment arrangements, and where arrangements are made to use staff or facilities from other departments (s 16(3)-(4)), formalise the arrangement and specify terms as required by s 16(5).

For legal advisers

Prepare to act quickly on s 33A show cause notices. The minimum three‑day period is short. Ensure rapid evidence gathering and submission processes exist.
Maintain privilege and Cabinet procedures. Where Cabinet material is in issue, follow s 54: verify whether a Director General certificate exists and, if given, recognise that certification is conclusive.
Understand privilege for Inspector documents. Section 53 privileges documents prepared specifically for Inspector functions; advise clients on evidentiary consequences and on how to preserve or challenge privilege appropriately.

Cross‑cutting compliance measures

Recordkeeping and audit trails. Maintain clear audit trails of all interactions with the Inspector, including document production, submissions under s 37, responses to s 33A, and any communications with independent visitors. These records will be essential for legal compliance and for assembling material for the annual report obligations under s 33 and Sch 1.
Training and briefing. Regularly brief and train staff on statutory offences, confidentiality obligations, inspection procedures and the limits on interference with Inspector functions.
Contract drafting. When negotiating custodial services contracts, include provisions acknowledging statutory inspection access, procedures for document production and protocols for handling requests from the Inspector and independent visitors.
Public interest and disclosure planning. Develop criteria and legal processes to assess whether disclosure to the Minister under s 18, or public interest disclosure under s 46, is required and to document the Inspector’s public interest reasoning where discretion is exercised.

These steps are grounded in the statute’s text and aim to translate statutory duties into operational compliance processes for agencies, contractors and advisers who will engage with the Inspector’s functions.

Deep Dive

What it does

Current sections