Page 1343 - Week 05 - Thursday, 31 May 2007
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The government, first of all, agreed with the committee’s interpretation of the defence provisions in clauses 145 (4) and 147 (5) of the bill. It was always, and remains, the government’s intention that a person has a defence to the offence if the person proves to the evidential standard of proof that the person took reasonable steps to comply with the direction. The government is of the view that the strict liability offences are justified, however, as the critical aspects of the offences are the physical elements, not the motivation of the individual involved.
Examination of the intention of the person or any other mental element does not have, in our view, significant bearing on the purpose of the offence. The purpose of the offence is to ensure that visitors abide by reasonable directions in the centre, and that is essential to the security of the centre. So the government maintains its view in relation to that matter.
The other matter that was raised in the debate this evening is the issue of the use of force. Again, I draw members’ attention to the issues that were examined by the committee and the government’s response to those issues. The key issue here is not about the use of firearms per se. It is about the use of appropriate levels of force, what is a reasonable level of force to deal with any potential incident inside the prison.
The essential ingredient is training in the use of force, not training in the use of a weapon per se, but training in the sense of the methods of de-escalation, minimising harm and managing violence and so on. The training regime that custodial officers will be put through will focus on reducing the potential for undue force by corrections officers. It does not deal specifically with firearms or other weapons. It is not about an emphasis on the use of particular weapons. It is about an approach to managing potential incidents of violence in the prison, de-escalating those, minimising harm and, where violence is occurring, using the minimum amount of force needed to deal with the situation.
This is consistent with findings of the European Court of Human Rights, which examined various aspects of the use of force in custodial settings. Citing earlier precedents, in 1996 the court said that the reasonableness of the use of force should be decided on the basis of the facts which the user of force honestly believed to exist. It also found—and this is the important element, I believe—that there was a strong obligation on the managers of a custodial facility to establish an environment where you do not see an escalation in violence that will lead to an escalation in the use of force. So there is a clear obligation, and that is the philosophy we are intending to bring to this facility.
Dr Foskey raised some other issues about the provision of healthcare services in the prison. These matters are subject to finalisation between by department and the Minister for Health and her department, and those matters are close to finalisation. I think it is difficult to justify the establishment of a complete stand-alone justice health organisation. If you want to abide by the principles of having as much of a mainstream provision of health services as possible—which is the human rights principle—that is, that the healthcare facilities in the jail should be, as much as possible, comparable with the provision of healthcare services in the broader community, then you seek, I think, to have those health services integrated into the
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