2015-11-12
Ms PENNICUIK (Southern Metropolitan) — I am happy to speak today on the Justice Legislation Amendment (Police Custody Officers) Bill 2015. This bill establishes a legal framework for civilian police custody officers (PCOs), who will be employed as public servants by the chief commissioner. They will not be able to use guns or tasers, but they will be issued with OC spray, batons and handcuffs. Under the bill police custody officers will have defined custody management duties, whereby they will supervise and manage certain people who are in police custody. That will include persons in police cells; persons being transported to or from police stations, the courts, mental health services and hospitals; persons detained in custody at court, or who surrender to the custody of the court in answer to bail; and offenders who are in hospital.
Police custody officers will have the power to search prisoners and visitors; to use reasonable force to maintain the security, safety and good order of police cells; to take all reasonable steps to ensure the safety and welfare of prisoners; and to prevent the commission of an unlawful act. They will be empowered to apply an instrument of restraint to a person if it is reasonable to believe it is necessary to prevent the escape of a person or the assault of or injury to any other person. PCOs will also be able to supervise offenders while they take their own swabs for DNA samples and help with breath and drug testing in some police stations.
These are quite wideranging powers and functions that this new class of public servant called police custody officers will have. It is worth saying that the supervision and management of prisoners involves a high level of responsibility. It ensures not only the safety of the public but the safety and welfare of prisoners. That is particularly significant when we realise that up to 55 per cent of prisoners may be at risk of self-harm, and that up to 42 per cent of prisoners, and perhaps more, have some level of mental health concern or issue. At present these matters are the responsibility of sworn police, protective services officers, prison guards and police escort officers — all those persons who come into contact with prisoners. This bill creates a new class of public servant, employed under the Public Administration Act 2004 but answerable to and directed by the chief commissioner.
In the second-reading speech and in media releases the Minister for Police has said that this bill will free up police to do the job they were trained to do, such as tackling crime and keeping the community safe, and that it is part of the government's commitment to ensure that Victoria has a well-resourced police force. But that raises a point about the job police have been trained to do. Until now that has included the supervision and management of prisoners in jails and police cells, the guarding of prisoners in hospital and the supervision of prisoners during transport to and from police stations. I do not necessarily accept the assertion that these tasks are somehow above and beyond normal police duties, when they have always been part of police duties.
In part you could say that the seminal issue here is that if the government is investing $148.6 million to recruit, train and deploy 400 custody officers in 22 police stations in Victoria over the next three years to help address concerns over the need for an increase in police numbers, why does it not just invest whatever the cost would be to train and deploy 400 more police officers, who could do duties above and beyond those of the police custody officers (PCOs) that are being created by the bill? That really is the seminal question. If the issue is that we need to create a new class of persons called police custody officers and train and deploy 400 of them, why does the government not simply employ 400 more police? Nevertheless that is what the bill does.
We are told the bill was developed in collaboration with Victoria Police, the Police Association and the Community and Public Sector Union (CPSU), to whom I have spoken briefly. I asked the CPSU its views about the creation of police custody officers, who because they will be employed as public servants will be covered in terms of union coverage by the CPSU, as are prison officers currently, particularly with regard to training, and I will refer to training in a short time.
I note the minister is sitting near the departmental adviser's box. I know the union has been in consultation with the government with regard to remuneration and conditions for police custody officers. When I spoke most recently with the CPSU, I understood there were a couple of outstanding matters. I wonder if the minister could outline whether they have been resolved — that is, those issues related to remuneration and conditions of employment for police custody officers. In particular it was in regard to the taking of breath samples and perhaps DNA samples as directed by the chief commissioner or his or her delegate.
Victoria Police will maintain responsibility for implementing all activity relating to the recruitment, training and deployment of PCOs. The minister says that PCO applicants will be appropriately vetted prior to employment, including being subject to standards and testing for character and reputation, psychological and medical fitness and cognitive ability as well as communication skills. They will be subject to initial and ongoing training, which will be customised for the particular role and responsibilities of police custody officers. This is based on components of the training currently provided to police, protective services officers, prisoner escort officers and, I understand, corrective services officers or prison guards.
We raised these issues with the minister's office, and I take this opportunity to thank the minister's office and the department, because there was quite a bit of to-ing and fro-ing over the weeks with regard to some of the issues raised by my colleague, Sam Hibbins, the member for Prahran in the other place. When he spoke on the bill a little while ago he raised some of those issues related to training and to the liability of police custody officers, which I will return to a little later in my contribution. I thank the minister's office and the department for getting back to us about a number of the concerns we raised about the bill; we are now more knowledgeable about it than we were at the time it went through the other place.
We were concerned that the training may not be sufficient, and this has been raised by a number of stakeholders, as it was raised with regard to protective services officers at railway stations when that legislation was first introduced. We understand there will be eight weeks of training. We got quite a detailed response about training. I will not read it all in, but I thank the minister's office and department for that comprehensive outline of the training. I spoke to the minister earlier about that and I think the minister could reiterate some of it for members of the public and other organisations, particularly the level of training police custody officers would receive, given their very important responsibilities for the welfare of prisoners et cetera.
Briefly and without going into too much detail I have been informed that the training of PCOs will comprise a blend of online, classroom, workplace and scenario-based training, covering topics such as safety and security; person-in-custody wellbeing; court assistance, including escorting prisoners to court; custody administration and professional practice; and in particular, initial, ongoing operational safety tactics training tailored to the role and function of the PCOs. As mentioned PCOs will not have access to firearms or tasers. However, they will have access to OC spray batons, covert protective vests and handcuffs, so there will be training on how to deploy that equipment. The training will also include demonstrations of appropriate behaviours and sessions dealing with vulnerable persons. There are quite a few other aspects to the training, which I hope the minister will be able to elaborate on in his summing up of the bill, because this is a particular area of interest to the community.
In terms of the eight-week training, the first three weeks will be about custody administration. The fourth week will be a workplace placement, but without direct contact with detainees. Weeks five to six will be more about wellbeing issues, and in week seven there will be a workplace placement with direct contact with detainees. Week eight will be incident management, self-awareness training and offender wellbeing simulation. An operational learning framework is included in weeks 9 to 20, which includes on-the-job activities to consolidate learning with workplace coaching and support.
But there is still a bit more detail that the minister could go into. While that training program looks reasonably comprehensive, it is a lot of stuff to squash into eight weeks. As well as the initial training, we need to be very sure that ongoing training is involved.
In terms of oversight, PCOs will be subject to appropriate oversight, discipline and management, including Victorian public service performance management; the requirement to comply with the chief commissioner's instructions provided under section 60 of the Victoria Police Act 2013 (VPA); random and critical incident drug and alcohol testing; the offences and other safeguards against disclosure of personal and sensitive information contained in the VPA and the Privacy and Data Protection Act 2014; and the obligations of public authorities under the Charter of Human Rights and Responsibilities. IBAC can also receive and assess complaints against PCOs and police.
The bill establishes statutory powers to manage persons in police jails and to transport detained persons to and from police jails and various places. Another issue the Greens wish to raise is that we need to be careful about the issue of liability. Clauses 7 and 21 of the bill refer to the liabilities of PCOs. Sam Hibbins, the member for Prahran in the other place, raised the issue of the liability of police custody officers should a member of the public suffer an injury or damage. We were concerned about this and received advice from the department that PCOs will not be personally liable for injury or damage if the use of force was reasonable and proportionate and necessary in the circumstances. As public servant employees, the same liability that applies to Victorian public sector employees will apply to PCOs. The state — in this case, the chief commissioner — will be vicariously liable for PCO conduct in the same way an employer is liable for the conduct of an employee under section 23 of the Crown Proceedings Act 1958.
For the benefit of the Victorian public, could the minister reinforce that this liability issue is a different situation than the one that applies to Victoria Police officers under the Victoria Police Act? I am advised that it is consistent with the arrangement for prison officers, who are also employees and not police officers. The Scrutiny of Acts and Regulations Committee raised this issue and stated that:
… the committee observes that Victoria's Court of Appeal has recently held that a statutory 'privative clause' may have the effect of preventing a Victorian court from hearing and determining an injured person's claim for declarations that a use of reasonable force is contrary to the obligation in … section 38 for public authorities …
Could the minister clarify that? This is a very important area and one that I have talked about many times in the Parliament with regard to the still not full liability of the police commissioner for the actions of police officers. Some changes were made to the police act which went almost as far as we need to go, in that a person injured by a police officer would in the first instance take up proceedings against the state. But the state still has the ability in some circumstances to say that the activity of the police officer was not done in good faith and was outside the scope of their duty. My view is that the state should always be liable for the actions of police officers because they have such wide powers — they are armed — and they also have discretion to use those powers. This is an issue that needs to be clarified for the public.
Another reason to clarify this issue is that in a 2014 report into deaths and harm in custody the Victorian Ombudsman found that police cells were being used as de facto prisons, at times holding in excess of 350 detainees, and that the resources to supervise high numbers of detainees in police custody placed a significant burden on police resources and led to less police on patrol. It also placed a burden on those people who were detained in the prison cells.
For example, the Ombudsman said:
the resources required to supervise higher numbers of detainees in police custody has placed a significant burden on police resources …
detainees are being held at the Melbourne Custody Centre for extended periods of time without access to fresh air or natural light in breach of the Victorian Charter of Human Rights and Responsibilities;
detainees are frequently transferred to police cells across the state limiting their access to family and legal representation;
detainees in police cells do not always have access to clean clothes;
some detainees are being held in police cells for in excess of 14 consecutive days at the same location, contrary to gazetted requirements;
the Melbourne Custody Centre is often full meaning that Corrections Victoria has been unable to ensure that some prisoners attend scheduled court appearances, resulting in disruption to the criminal justice system.
These impacts on detainees as well as on the courts and the police are big concerns, so we need to know that all these issues are being covered off.
I have covered most of the issues I wanted to cover, but I want to say, as I said before, that the issues we are facing here are as a result of changes to sentencing introduced by the previous government, which has meant that more people are ending up in police cells, more people are ending up in the Melbourne Custody Centre and more people are ending up in prison when they could in fact be better off on community correction orders. We have seen restrictions introduced on bail and parole, which are aimed at serious violent offenders and which everybody in the Parliament and everybody in the community completely supports but which are in fact impacting on other offenders who are not serious offenders and are creating this overcrowding problem.
We need to see more investment in justice reinvestment, restorative justice and a range of mental health and rehabilitation programs. We need more support for prisoners post-release so that they do not become recidivists and end up back in the corrections system. We need to make sure that people have access to housing and other supports after they have left prison and that they have access to rehabilitation programs when they are in prison so that we do not have these overcrowding problems. Having said all that and having asked the minister to go through some of those issues in his summing up, the Greens will not be opposing the bill.
In Committee:
Ms PENNICUIK (Southern Metropolitan) — I have some brief questions on clause 7, which inserts new part 11A. New section 200B, which is on pages 4 and 5 of the bill, refers to the duties of police custody officers to, firstly, assist with the management and operation of police jails; secondly, supervise and transport persons in accordance with the act; and, thirdly, undertake any other duties determined by the chief commissioner from time to time. The minister talked about that a little in his contribution when he mentioned things such as dealing with property et cetera. I am just wondering how those duties that may be determined by the chief commissioner from time to time may be limited? The definition of 'any other duties' could be quite broad, so I am just wondering how they may be limited to the sorts of duties the minister mentioned.
Mr HERBERT (Minister for Training and Skills) — I am advised that there are a whole heap of duties in the legislation. There would be saliva swabs or DNA swabs and things like that. In relation to the specific issue, these will be administrative duties and not duties that would require further legislative arrangements. I said earlier in response to a question that there will be times when the number of people in custody is none or very few. It is envisaged that officers would then do other administrative duties while they are there rather than just sitting around and not having things to do. There is always a lot of work to do in police stations, so basically it will be administrative duties.
Ms PENNICUIK (Southern Metropolitan) — I hear what the minister is saying, but I do not really see anything in the bill that limits the scope of those duties, so it still stands as quite a broad power of the chief commissioner. I am presuming the chief commissioner is not going to be assigning duties for which people are not trained, but it does not necessarily say that.
I will go to the next question I want to ask, which is about new section 200D(1) on page 5. The minister mentioned this earlier in answer to a question from Mr O'Donohue. New section 200D(1) states:
The Chief Commissioner, by instrument, may authorise a Victoria Police employee to act as a police custody officer.
New section 200D(2) then states:
An authorisation may be given subject to any conditions or limitations that are stated in it.
That does in fact limit it. What type of employee would be given that sort of authorisation — —
Mr Herbert — Police employee?
Ms PENNICUIK — Yes — what type of police employee — given that we have just spent a long time, as the minister would know, talking about the issue of training. Not everyone who is a Victoria Police employee is going to have gone through that training, so I think that needs to be explained as well.
Mr HERBERT (Minister for Training and Skills) — I think I can clarify that point. Anyone who is undertaking the role of police custody officer will have had to have done the training. That particular section allows the chief commissioner to basically recruit people, but it also means that police officers who have done the training and who may wish to become custody officers have to be vetted and undertake various things before they can go and take on the role. There are also cases where someone may have done the full training to be a custody officer and then gone for another job at the police station. They could still do custody on short-term notice. They will have had to have done all the training and fulfilled all the requirements.
Ms PENNICUIK (Southern Metropolitan) — I have one further question. In terms of the training, is the minister specifically referring to the 8-week training or the 20-week training?
Mr HERBERT (Minister for Training and Skills) — You are making it hard on me!
Ms PENNICUIK (Southern Metropolitan) — I think it is an important issue, Minister.
Mr HERBERT (Minister for Training and Skills) — Okay, so I will try to answer this question for Ms Pennicuik. Just as with a police officer, who will do, I think, 13 weeks training and then a year when they do it, the time frame of the formal training is to enable them or to enliven them to undertake their jobs legally. Then the rest of it is part of their on-the-job training, before they formally assume the role.
I am advised that, in regard to your question, should those circumstances arise, no-one will undertake a police custody officer role if they have not had the experience or training. So it could be a police officer, you see, who then transfers through, but they would have experience of the role. I guess in my way of thinking they would have recognition of prior learning: they will have that broader experience and knowledge of how the operational matters work and their requirements in terms of rights et cetera.
In short, I would not envisage that it would be the case that people who had not done the eight weeks plus the other time in there would at some point be appointed by the chief commissioner to do police custody duties.
Ms PENNICUIK (Southern Metropolitan) — The reason I am asking this is the fact that the employees are public servants, so I am assuming this particular provision applies to that type of person, rather than a sworn police officer. A sworn police officer is not referred to as an 'employee', so we are talking here about someone who is not a police officer. In terms of a sworn police officer, they already have the role of being a police custody officer; it is already part of their role to this day, so that would not be an issue. It is really a Victoria Police employee, so I suppose I am just looking at the possibility of the chief commissioner saying, 'We do not have enough police custody officers. So and so over there does other duties, but we are just going to have them do the work of a police custody officer because we do not have one at the moment'. That is the issue.
Mr HERBERT (Minister for Training and Skills) — That will not happen. Basically, they will have to have done the training and fulfilled all requirements. They will have to have done the training and be enlivened to operate as a custody officer. As I say, moving forward into the future, I would imagine there will be cases where custody officers might do other jobs in police stations. They might want a raise or want to do other types of work once they are in there, but they will have to have done the training if they are needed to backfill — if they are needed, in short, for emergency circumstances. They will have to have had that training.
Clause agreed to; clauses 8 to 30 agreed to.
Reported to house without amendment.
Report adopted.