Legislative Assembly for the ACT: 2007 Week 5 Hansard (31 May) . . Page.. 1345..
DR FOSKEY (Molonglo) (5.41): I am very pleased with this amendment and the progress that has been made, and I fully support it.
MR SESELJA (Molonglo) (5.42): The opposition will be supporting the amendment. I understand these amendments were finalised on about 25 May and only circulated today, which is disappointing. I would also make the point that in relation to the bringing on of debate Mr Corbell had the courtesy to inform the Greens office, but not the opposition.
Amendment agreed to.
DR FOSKEY (Molonglo) (5.43): I move amendment No 1 circulated in my name [see schedule 2 at page 1362].
This amendment, which seeks to insert subclauses (6) and (7) into clause 21, represents a security check on the exercise of the corrections chief executive's use of his or her power to override a doctor's direction under subclause (4). My office has received assurances that this power would only be used in exceptional circumstances and that it would be promptly reported to appropriate persons. I accept these assurances from the current office-holders. However, it is not our job to build a legislative framework that relies only on trust—if only it were so.
My amendment acts as a check on the abuse of the power under clause 21 (4) by creating a clear legislative requirement that at least one accredited person is promptly informed of the exercise of this power. I have been advised that the monitoring body should not be the Human Rights Commission. If the commission was notified by corrections of a decision to disregard a doctor's direction and allowed it to occur, the commission could not appear as an independent expert witness if the case came to the courts at a later stage.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (5.44): Mr Speaker, the government will not be supporting this amendment. The key reason is that it would create confusion as to who was ultimately responsible for the safe custody of prisoners. The government does not want to create in the legislation an ambiguity whereby there could end up being an argument between two agencies about who is responsible for the safe custody of a prisoner.
At the end of the day, for accountability purposes and for a clear understanding of how and who is responsible for decision making in particular areas of the prison, it is important that this power is vested in a single position, not in an alternating arrangement, which is what Dr Foskey proposes. Ultimately it is the entity responsible for the custody of prisoners that has to have the final decision on custodial matters. That is a principle upheld by human rights jurisprudence.
The power in clause 21 for the chief executive not to follow a health recommendation is provided only to be used when absolutely necessary. The government envisages that ACT Health and ACT Corrective Services will have, first of all, established relevant agreements and protocols to foster a close working relationship between health service providers and corrections officers and that, secondly, these relationships will exist.