Corrections Further Amendment Bill (09.05.2013)

Written on the 20 May 2013

Ms CROZIER (Southern Metropolitan) -- I am pleased to rise to speak on the Corrections Further Amendment Bill 2013. As other members have said in this debate, it is an important bill to get through the Parliament. It will do a number of things to improve the Victorian corrections system and will close a couple of loopholes in this area. I note that the Minister for Corrections is in the house and I am sure he has been listening to the debate with great interest.


In the second-reading speech it was noted that the bill makes retrospective amendments to the Corrections Act 1986 to validate decisions taken by the director-general of corrections, the Secretary to the Department of Justice and their delegates. The bill was necessary due to the implications of a Supreme Court decision which held some of the decisions made at the time to be invalid.


The issue was that the price at which Corrections Victoria and its predecessors sold tobacco products to prisoners was higher than the wholesale purchase price. Other members have pointed this out very clearly when speaking on the history of the issue.


It is noted that the inclusion of an additional charge in the price of cigarettes and tobacco sold in prisons between March 1993 and April 2004 was valid and that any decision that the director-general, secretary or their delegates made between 1 March 1988, when section 17 of the act commenced, and 12 January 1995, when the amendments to section 17 commenced, that could have been made after the commencement of that section would be taken to have at all times been made in the valid exercise of power.


This goes to the heart of the issue. Cigarettes and tobacco are quite readily accessible and have always had a presence in the Victorian corrections system.


As we know, many of those incarcerated use tobacco products freely. As somebody with experience of working in health, I understand the impact of tobacco and the ongoing effect it can have on anyone, whether in prison or in the community.


As has been highlighted, consecutive governments have wanted to improve health outcomes and see smoking decrease in our community as much as possible. In Victoria alone 4000 lives are lost each year as a result of smoking. Smoking costs $2.4 million in direct health costs and lost productivity each year. These are significant costs, and they are costs not only to the individual, their families and the community but to the overall economy. Consecutive governments have been addressing this issue and will continue to do so, and I am pleased with that.


As I said, we need to be doing more in our prison system.


In March 2011 the National Summit on Tobacco Smoking in Prisons -- Report on the Summit was handed down. The report explains:

The aim of the summit was to reach a broad consensus on how best to tackle the high rates of tobacco smoking amongst prisoners and to identify the best ways forward to reduce harms caused by tobacco in custodial settings.


It is fairly well acknowledged that prisons are unique settings in themselves with special populations, if you like, and some of those people have the greatest health needs.


While I am on this point about our prison system, I have to say that I commend the Minister for Community Services on looking at our youth justice system and, in conjunction with the Minister for Education, Minister Dixon, putting new educational facilities into the youth justice system to assist those young people, and, if they are going to be taking up smoking, to educate them about the issues surrounding tobacco smoking and rehabilitation services. I have gone off track a little bit from what this bill is about, but it is important to paint the scene of our prison system here in Victoria and the various things this government is concerned about and is working towards improving. The prison system has a unique community, and we need to send the message to those within the prison facilities.


As I said before when talking about the act that this bill relates to, before 1993 cigarettes were relatively cheap and easily accessible within the prison system as they were sold at a wholesale price. There was a change in policy with regard to this and the price of tobacco was increased to 90 per cent of the recommended retail price. As was highlighted in the second-reading speech, this was later updated, in 2004, to the whole of the recommended retail price.


Unfortunately in 2011 proceedings, which were ultimately successful, commenced in the Supreme Court. This action sought to have the decisions made in 1993 and 2004 regarding increasing the price of tobacco declared invalid. While the 2004 decision was upheld by the court, the 1993 decision was found to be invalid due to a lack of evidence that there was at the time anyone who actually made the decision to increase the prices, as was required by section 17 of the Corrections Act 1986.


This means that the price increases for cigarettes during that period were not valid, and it is therefore possible for prisoners who were incarcerated at the time to take action to recover the extra money spent. I know others have highlighted the difference between the wholesale price and the actual price and the programs that were put into place. However, that does not take away from the fact that this action, which commenced in 2011, did take place and was successful.


While the payouts of compensation would not be significant, the cost of defending so many claims could be significant and would impose a significant cost on the government and our court system and ultimately the taxpayer. It appears there are some people within the prison system who are borderline vexatious litigants and who would take any opportunity to go through that process. This bill will address that issue.


Another and more important reason this legislation is necessary is that any decision made under the operation of section 17 of the Corrections Act may be invalid, and it is difficult to know what decisions may have been made. Many decisions would have been made throughout the period by the director-general and/or the department secretary that relate to prison management or prisoner welfare. That clarification will be assisted by this legislation. The potential implications of this in terms of possible future litigation are quite obvious, and it is obvious what the enormous cost in legal fees for defending these claims would be to the Victorian taxpayer and to the government. The bill therefore retrospectively makes valid all the decisions of the director-general and secretary between the time section 17 came into operation on 1 March 1988 and 12 January 1995 when amendments made to the operation of section 17 repaired the defect with that provision.


I understand that a number of people are concerned about the retrospective nature of the bill, and I think it is true and reasonable that as a principle we do not apply retrospective legislation. However, in this case it is absolutely necessary that we take that measure and look at amending this aspect. This bill goes to the heart of doing that. As I said, it will validate decisions that were at the time considered to be lawfully and validly made and were decisions that, although they had an impact on those who were subject to them, were not then and are not now in any way controversial in nature.


We can review those aspects with this bill. We should certainly take into consideration the issues the state will need to address if the bill does not go through. It is well and truly necessary for the continuation of the good governance that has been conducted in Victoria, and I commend the bill to the house.

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