Ivana Bacik (Independent)

I thank Senator Regan for expressing support for the amendment. As he stated, the amendment would improve section 12. The amendment does not require the Minister to apply exactly the same regulations because, as already stated, I am conscious that some of these would not be relevant. It simply allows for a certain minimum standard to be observed in developing any new regulations for persons held in temporary custody. I am also conscious that the need for keeping very detailed custody records would not apply in respect of people in temporary custody.

I am concerned that if the amendment is not accepted, there will be no reference to the criteria the Minister will use when prescribing these standards. I am conscious the Minister of State has already accepted the same principle, in a sense, in section 11(2) where the holding area officer's power of search is specified as being in accordance with the prison rules. That is very important because the power of search has been open to abuse in some cases and has always had to be carefully circumscribed by law in any jurisdiction. It is important, therefore, that in section 11(2) the power of search is specified as being necessarily in accordance with the prison rules.

As I said in the context of an earlier section, section 11(1) gives other extensive powers to holding area officers, including power to prevent escape from lawful custody, ensure a prisoner behaves in an orderly and disciplined fashion and so on. Clearly, there is potential there for physical intervention with the person in custody. There must, therefore, be some safeguards or criteria that apply where holding area officers are exercising their powers under section 11(1). The Minister of State may come back and say there are already such safeguards. Certainly, there are the constitutional provisions, constitutional case law and existing regulations. However, I have a concern unless the existing regulations are specified, especially considering the provision in section 11(2). The more I look at it, I find it interesting that section 11(1) does not state that any powers there must be exercised in accordance with any rules or standards. The section 11(1) powers as set out are very broad powers which could lead to some very serious physical intervention on the body of the prisoner. Section 12 seems to be the only section that makes any attempt to offer any oversight of the powers the holding area officer may exercise.

I do not want to labour the point, but it is important we are told what standards will be employed. The amendment seeks to insert some reference to sets of existing standards below which those in temporary custody will not be subjected to. This is in keeping with the Minister of State's approach in section 11(2) which is to circumscribe the power of search so that it must be carried out only in accordance with the prison rules.