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1
Corrective Services Legislation Amendment
CORRECTIVE SERVICES AMENDMENT
BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The main objects of this Bill are:-
(a) To amend the CS Act to clarify and strengthen the powers of
custodial correctional officers to:
(1) discharge firearms against prisoners and other persons in or
near a prison;
(2) search persons entering prisons and also search anything in
their possession; and
(3) order prisoners at random to provide urine samples.
(b) To provide that regulations may be made to prohibit articles in a
prisoner's possession.
(c) To amend the Corrective Services Act 1988 (CS Act) to remove
prisoner access to Statements of Reason and Statutory Orders of
Review under the Judicial Review Act 1991 (JR Act) in respect of
any decision relating to a prisoner's control or management,
remission of sentence, extended leave, home detention or parole.
(d) To introduce a new part in the CS Act requiring officers to give
prisoners clear reasons for decisions and establishing an
independent Review Commissioner to review the merits and
process regarding certain decisions affecting a prisoner's control,
management or remission of sentence.
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Corrective Services Legislation Amendment
Reasons for the objectives and how they will be achieved
(a) Deficiencies in legislation governing prison security were
identified and highlighted following recent serious escapes. There
is considerable uncertainty as to the extent of force that can be
employed by armed correctional officers, in particular where
prisoners are escaping from custody, possibly with assistance
from other persons. Legislation also fails to define the manner in
which persons entering prisons may be searched and to state
whether such persons can be touched in the process of being
searched. While there is a power for a correctional officer to
arrest a person entering a prison who is believed to be involved in
the commission of certain offences, the CS Act is silent on the
officer's power to detain such a person pending police
intervention. Finally, the CS Act permits samples of a prisoner's
breath, urine, hair or blood to be obtained only if it is believed that
the sample will provide evidence of a prisoner offence. This
prevents random urine testing to determine the presence of drugs,
a practice which is commonplace in prisons in other Australian
jurisdictions.
The Bill clarifies when firearms can be discharged against
prisoners and other persons by custodial correctional officers. It
sets down the types of searches that correctional officers may
order in respect of persons entering prisons and establishes that
correctional officers may not strip search such persons.
Prisoners, however, must be strip searched in defined
circumstances set down in the Bill. Where a person is reasonably
suspected of committing an offence in a prison, a correctional
officers can arrest and detain a person for up to three hours before
placing the person under the control of the police. The Bill
establishes that urine samples of a prisoner can be obtained at
random.
(b) Articles that may be in a prisoner's possession are listed in a
Commission's Rule. Prisoners have claimed that they do not
always have access to Commission's Rules. To avoid any
possibility that prisoners are unaware which items of property are
prohibited in a prison, it is proposed to list the items in a
regulation rather than a rule as regulations are more readily
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Corrective Services Legislation Amendment
available in prisons.
(c) The decision to remove prisoner entitlement to seek Statements of
Reason and Statutory Orders of Review under the JR Act was
made in response to complaints from prison management and
Community Corrections Boards that the requirement to give
detailed written reasons to prisoners for a range of decisions
proves time consuming and difficult. Further, prisoners who
initiate proceedings for a Statutory Order of Review in the
Supreme Court find that the Court cannot grant relief on the
merits of the decision which is, in most cases, the source of the
grievance. The resulting decision may be identical to the one
reviewed despite much court time and public moneys expended
in the process. One object of this Bill is to introduce a
mechanism for reviewing the substance of prisoner grievances.
Prisoners will continue to have access to the courts to seek the
remedies available under Part 5 of the JR Act.
(d) It is expressly desired that the quality of decision making and the
accountability of the prison system not suffer as a result of certain
relief under the JR Act being removed. A new part in the CS Act
sets out the requirement that prisoners be given clear, concise and
readily understandable explanations for decisions affecting them.
Where a decision is made under corrections legislation, an
explanation can also be sought in writing.
In addition, an independent Review Commissioner, accountable
to the Minister, will review the merits and process of specified
prisoner decisions after a mandatory internal review process is
followed. The Review Commissioner will be empowered to set
aside, affirm or vary decisions or return them to the original
decider with directions.
Administrative cost to Government of implementation
There are no anticipated costs in respect of the security measures
proposed in the Bill. Officers presently receive rigorous training in the use
of weapons. The quality of training should improve with greater legislative
clarity regarding the discharge of firearms. Searching of persons entering
prisons can be conducted with greater efficiency if the ambit of any search
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Corrective Services Legislation Amendment
is defined. Prisoners voluntarily submit to random urine tests as a matter of
practice. This measure will not attract costs. There will be administrative
costs associated with the establishment of a Review Commissioner. These
will be offset by a reduction in the costs associated with providing detailed
statements of reason under the JR Act and defending Court applications for
a statutory order of review. Community corrections boards , as well as
prison administrators, have had to allocate resources for these specific
functions. These can be diverted to essential core activities. The Review
Commissioner is not intended to be an expensive rights creating form of
relief. The essence of the initiative is speedy, informal resolution of
prisoner complaints which otherwise can generate a virtual "paper war".
Cost efficiencies should be realised as prisoners will be less inclined to
pursue court action promising only procedural relief where there is the
credible alternative of having decisions reviewed and, where appropriate,
changed substantially.
Fundamental legislative principles
1. Section 4(3) of the Legislative Standards Act 1992 ("LSA") sets
down criteria for determining whether a Bill has sufficient regard
to the rights and liberties of individuals. The first criterion asks
whether legislation, making rights and liberties depend on
administrative power, is sufficiently defined and subject to
appropriate review.
Amendments to section 44 of the CS Act which deal with control
of prisoners will permit a custodial correctional officer or police
officer to discharge a firearm against a prisoner escaping from
secure custody or against a person assisting the prisoner to escape
from secure custody. Such extreme force can be used only if the
officer, having given a verbal warning of the intent to shoot,
believes on reasonable grounds that the discharge is the only
practicable way to stop the escape and provided that the action
places no other person at unnecessary risk of death or grievous
bodily harm. The conferring of administrative power to harm
and possibly kill another person is extraordinary and highly
sensitive, particularly since it may be used against convicted and
unconvicted prisoners. However, the safety of the public must be
the paramount consideration where prisoners are considered by a
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court of law to be sufficiently dangerous to be incarcerated.
Prisoners in a remand prison pose different levels of
dangerousness. However, officers cannot readily gauge risk
factors in the heat of an escape where it may be impossible to
identify a prisoner. They cannot be required to make reliable split
second assessments of the relative risk individuals pose if the
escape succeeds. The legislation requires an officer to believe on
reasonable grounds that there is no practicable alternative means
to prevent an escape other than through discharge of a firearm
against the prisoner or person assisting the prisoner. The officer
may not shoot if to do so would place another person at
unnecessary risk of death or grievous bodily harm. Further, an
officer may not shoot until a verbal warning of this intention is
given, provided the warning would not increase the likelihood of
serious harm to another person. Only prisoners who escape from
secure custody may be shot. "Secure Custody" will not extend to
prison farms or WORC camps, nor will prisoners of low or open
security classification under escort be deemed to be in secure
custody.
These qualifications on the exercise of extreme force are defined
with sufficient clarity to allow officers, prisoners and other
persons to understand and appreciate their ramifications.
2. Section 4(3)(g) of the LSA asks, in part, whether the legislation
adversely affects rights and liberties.
In two respects it may be perceived that prisoners' rights and
liberties are adversely affected by the legislative changes. Firstly,
prisoners cannot presently be required to provide a sample of
their breath, urine, hair, saliva or blood unless the general
manager of a prison believes on reasonable grounds that the
sample may afford evidence of the commission of an offence or
breach of discipline by the prisoner.
Prisoners will now be required to comply with an order to
provide a sample of their breath or urine, at random, regardless of
suspicion. Within the prison system there is a continuing need to
monitor the level of drug use to minimise the incidence of drug
related deaths or injury. All other Australian jurisdictions have
legislated to permit random urine testing of prisoners. Prisoners
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in Queensland customarily supply urine samples for drugs testing
programs on a voluntary basis. They are not likely to perceive
legislation allowing random testing as unduly intrusive.
However, if punishment by disciplinary action is the outcome of
a positive drugs test, some prisoners may react adversely. In
spite of this, prison security demands that punitive action be an
available option where prisoners ingest drugs.
Secondly, prisoners deprived of access to statements of reason
and statutory orders of review under the JR Act could argue that
the range of remedies available to prisoners as a group has
significantly diminished and that prisoners suffer a collective
form of discrimination in the result.
While prisoners will be denied formal statements of reasons, they
will have enhanced rights to seek oral reasons for all decisions,
not just those under an enactment. If aggrieved by a decision
made under corrections legislation, prisoners may further seek
written reasons. The requirement at law that prisoners be given
clear and readily understandable reasons, whether oral or written,
is an attempt to ensure that more satisfactory explanations are
communicated to prisoners. Prisoners will continue to have
access to the Supreme Court for judicial review of any decision
under Part 5 of the JR Act. Further, a merits review mechanism,
previously unknown to prisoners in Queensland, will be
introduced as a more satisfactory means of resolving prisoner
grievances.
3. Section 4(3)(b) of the LSA asks whether legislation is consistent
with principles of natural justice.
New section 196G(3) allows the Review Commissioner, despite
any other law, to prohibit or limit access by a prisoner to
documents or information on which the decision on review is
made if the Review Commissioner reasonably believes that
giving the access would adversely affect -
(a) the security of the prison;
(b) the safety of any person; or
(c) the expeditious conduct of the review.
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Corrective Services Legislation Amendment
It is arguable that prisoners will be denied procedural fairness,
there being no assurance that prisoners will be given the
opportunity in all cases to know, examine and respond to adverse
allegations against them made to the Review Commissioner. The
success of the Review Commissioner's function pivots on a
fair-minded appreciation of all the issues and speedy turnaround
of grievances. To afford prisoners natural justice in all cases
could jeopardise prison security and the safety of informants and
would unnecessarily prolong a number of reviews. The Review
Commissioner will be fully apprised of all facts and
circumstances relevant to the grievance and will place such weight
on adverse material as the Commissioner sees fit. In the interests
of a speedy, safe and fair outcome, however, the Review
Commissioner needs a broad discretion to refuse a prisoner
access to information where this is deemed necessary.
Consultation
The content of this Bill was discussed with officers in the Department of
Justice, including the office of the Parliamentary Commissioner, the
Queensland Police Service and the Queensland Community Corrections
Board. The Prisoners Legal Service, Catholic Prison Ministry, the
Queensland Council for Civil Liberties, Victims of Crime, the International
Commission of Jurists, Sisters Inside and the Queensland Aboriginal and
Islander Legal Services Secretariat were among stakeholder groups
consulted on all aspects of the Bill other than the proposal to introduce an
external review mechanism for prisoner grievances. This initiative emerged
as a response to broad concern that decisions concerning prisoners should
be reviewed impartially, transparently and effectively.
NOTES ON PROVISIONS
PART 1 - PRELIMINARY
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Corrective Services Legislation Amendment
Clause 1 sets out the short title of the Act.
PART 2 - AMENDMENT OF THE CORRECTIVE
SERVICES ACT 1988
Clause 2 provides that the Act commences on a day fixed by
proclamation.
Clause 3 provides that the Corrective Services Act 1988 is amended by
this Act.
Clause 4 inserts new definitions for "person entering a prison", "Review
Commissioner" and "search" by reference to the sections in the Act in
which these terms arise.
Clause 5 inserts new subsections (4) to (9) in section 44 which deals
with control of prisoners and the use of force against prisoners.
New subsection 44(4) allows a custodial correctional officer or police
officer to discharge a firearm harmlessly, where a prisoner is escaping or
attempting to escape, as a warning to either the prisoner or to a person
assisting him or her in the escape.
New subsection 44(5) allows a custodial correctional officer or police
officer to discharge a firearm against:
� a prisoner escaping or attempting to escape from secure custody
or a person assisting in that escape;
� a person other than a prisoner who threatens or uses force against
any person in a prison including an officer, employee or prisoner
which is likely to cause death or grievous bodily harm;
� a prisoner who threatens or uses force against any person likely to
cause death or grievous bodily harm
if the officer believes on reasonable grounds that the discharge is the only
practicable way to stop the escape or the force being used.
New subsection 44(6) authorises the discharge of the firearm in the
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circumstances outlined in new subsection 44(5) even though this may cause
death, grievous bodily harm or other injury.
New subsection 44(7) sets a precaution on the discharge of a firearm
against persons mentioned in new subsection (5) namely, that the discharge
not place another person at unnecessary risk of death or grievous bodily
harm and the requirement that the officer intending to shoot issue a verbal
warning of such intent.
New subsection 44(8) clarifies that the warning need not be given by the
officer if he or she believes on reasonable grounds that the warning would
increase the likelihood of death or grievous bodily harm against the officer
or another person.
New subsection 44(9) defines "escaping from secure custody" to include
continuing escape in the immediate proximity after the prisoner has
departed from secure custody. The subsection defines "secure custody" as
custody in a prison with a perimeter constructed as a barrier to prevent
escape or, where a prisoner is being escorted, custody of a prisoner of
maximum, high or medium security classification. The latter security
classifications are defined as given to a prisoner under a regulation.
Clause 6 amends section 47 by inserting new subsections (2) and (3).
Subsection (2) provides that a general manager must order a custodial
correctional officer to search a prisoner if the general manager reasonably
suspects that a person entering a prison has given the prisoner a prohibited
article.
New subsection (3) requires that a search ordered under subsection (2)
must involve the removal of clothing but may involve only such touching
as is necessary to ensure the prisoner complies with the order.
New subsection 47(4) clarifies that the above circumstance for a
mandatory search is distinct from other circumstances where the
commission may prescribe by rule that prisoners must be searched.
New subsection 44(13) defines a person entering prison to be any person
other than a prisoner or holder of judicial office including a visitor, a staff
member or employee or officer of the commission. A prohibited article is
defined by reference to section 93(1)(c) which, as amended, will provide
that these articles to be prescribed in a regulation.
Clause 7 amends section 48 by inserting the term "doctor" (defined in
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Corrective Services Legislation Amendment
the Acts Interpretation Act 1954) in lieu of "legally qualified medical
practitioner". It omits subsection 48(4) and inserts a new subsection (4)
which removes the necessity for the general manager to hold a reasonable
belief that a sample of breath or urine will provide evidence of the
commission of an offence or breach of discipline by the prisoner while in
prison. The new subsection allows a general manager or the person in
charge of a community corrections centre or place prescribed by rule to
order a prisoner to provide a sample of the prisoner's breath or urine for the
purpose of a test to indicate whether the prisoner has ingested anything that
the prisoner may not lawfully possess. New subsection (4A) retains the
need for the general manager to reasonably believe that a sample of a
prisoner's blood, saliva or hair may afford evidence of an offence or
disciplinary breach by a prisoner before the sample can be obtained.
Clause 8 omits reference to a rule in section 93(1)(c) as prohibited
articles will be listed in a regulation.
Clause 9 omits section 107 and inserts a new section 107 which deals
with action that may be taken by correctional officers who suspect on
reasonable grounds that a person is involved in the commission of an
offence that may threaten the security or management of a prison or
prisoner. New subsection 107(2) provides that the correctional officer may
use force that is reasonably necessary to arrest without warrant and detain
such persons. The correctional officer must immediately report the
circumstances of the arrest to a police officer and may detain the person
arrested until the police officer takes control or for a period of no more than
3 hours. If, after the police officer has been contacted, the correctional
officer no longer has reason to suspect the person detained is or was
involved in the commission of an offence, the person must be immediately
released.
Clause 10 omits sections 108 and 109 and inserts new sections 108 and
109.
New section 108 defines a person entering a prison as any person other
than a prisoner or holder of judicial office including a visitor, a staff
member, an officer or employee or a commission officer or employee.
New section 108 defines search to cover 3 types of search namely, search
with a hand-held scanning device, a pat down search of a person's clothed
body or search of anything in a person's possession including a vehicle. A
child may be searched by any or all of these 3 methods.
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New section 109 establishes that persons are to be warned by a notice
posted at the entry gate that they may be subject to a search order which the
general manager may give for any purpose. A custodial correctional officer
ordered by the general manager to conduct the search can in turn give any
necessary order to the person being searched to facilitate the search.
Touching of any person in the course of a search can only be to the extent
necessary and a pat down search must be conducted by a person of the
same gender as the person searched. While things in a person's possession
may be searched, a custodial correctional officer may not search legal
documents brought into a prison by a prisoner's lawyer. A person who
refuses to be searched can be removed from the prison by order of the
general manager. Such force as is reasonably necessary may be used to
effect the removal of the person from the prison.
New section 109A allows a custodial correctional officer to seize
anything in the course of a search that the officer suspects on reasonable
grounds provides evidence of the commission of an offence.
Clause 11 inserts a new subdivision 3 and new section 110A which
empowers a general manager of a prison to order a person not to enter a
prison or to leave a prison if the general manager believes on reasonable
grounds that the order is necessary for the security or management of the
prison. A custodial correctional officer can be ordered to remove the person
using reasonable force. This power is presently contained in old subsection
108(3)(b) in the context of searches of visitors. It is more appropriately
removed from this subsection and isolated as a general power that may be
applied when any person, including an officer or employee, needs to be
removed in the interests of the security or management of the prison.
Clause 12 amends section 130 by inserting a new regulation making
power prohibiting things that may not be possessed in a prison.
Clause 13 omits section 192 which precludes action by way of
prerogative orders under the JR Act in respect of any action taken or
decision made by a Community Corrections Board. This will allow
prisoners to seek a review of decisions made by Community Corrections
Boards pursuant to Part 5 of the JR Act.
Clause 14 inserts a new Part 5 which deals with review of decisions
affecting prisoners. New sections 196A and 196B provide for the removal
of the application of Parts 3 and 4 of the JR Act and section 27B of the Acts
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Interpretation Act 1954 in respect of certain decisions made under the CS
Act. New section 196C states that reasons for decisions must be given to
prisoners in a clear and readily understandable fashion. A prisoner will be
entitled to oral reasons for any decision unless this is impracticable. For
example, if a prisoner is being removed in haste to a safe section of a prison
in an emergency such as a fire or in a riot, it may not be practicable to give
even brief oral reasons for the action taken. Prisoners may request reasons
in writing for decisions made under corrections legislation. Such reasons
must be sought within 28 days of the decision and supplied within 28 days
of the request. Reasons must be given in a clear and concise form which
communicates to the prisoner why the decision was made.
New section 196D clarifies that a review under the Act can only be
sought in respect of transfer, leave, remission, classification, discipline and
special treatment decisions. A reference is made in this provision to new
section 196F which provides for internal review of decisions. Discipline
and special treatment decisions under the CS Act have statutory review
mechanisms. In respect of transfer, leave, remission and classification
decisions, there is no established procedure in any Act or regulation for
internally reviewing the decisions.
New section 196E states the purpose of the Review Commissioner
initiative which is intended to provide speedy resolution of prisoner
grievances in a way that is cost effective, efficient, informal and as simple
as possible.
New section 196F provides that internal reviews of four types of
decisions (ie. transfers, classification, remission and leave) must be carried
out. An internal reviewer is to be independent of the original decider and
appropriately qualified to review the matter.
New section 196G clarifies that a review by a Review Commissioner
must be preceded by an internal review as set down in the CS Act or
otherwise by regulation under new section 196F. A prisoner may apply
from the internal reviewer's decision to the Review Commissioner who
may affirm, vary or set aside the decision substituting it with a new decision
or returning it to the original decider with appropriate directions.
New subsection 196G(3) states that the Review Commissioner can
prohibit or limit prisoner access to documents or information relevant to a
decision under review if the Review Commissioner reasonably believes that
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access would adversely affect prison security, a person's safety or the
speedy conduct of the review.
New section 196H reiterates the need for speed and informality in the
conduct of reviews. It clarifies that a decision under review will not be
stayed unless an express decision is made to that effect. To overcome
difficulties with delegation of powers to reviewers, new subsection 196H(3)
states that the person reviewing a decision has the same powers as the
original decider.
Subsection 196H(4) allows for regulations covering the conduct of
reviews including the prohibition on legal representation, the ways in which
reviews may be heard and the ability of the Review Commissioner to
decide procedural matters for the conduct of the review.
New section 196I describes how the Review Commissioner is appointed
and provides for absences and a vacancy in the office. It also provides for
the commission to provide staff and resources to the Review
Commissioner to allow him or her access to a range of information and
documents. The Review Commissioner must prepare annual reports and
cause them to be laid before Parliament. The operations of this division of
the Act will be reviewed within the first 2 years. The Review
Commissioner is to be regarded as a tribunal for the purposes of the
Parliamentary Commissioner Act 1974.
Clause 15 inserts new sections 207A and 207B.
New section 207A states that the director-general may approve forms for
use under the Act. Consequential minor amendments in the Schedule omit
the expression "prescribed form" and replace it with "approved form". As
some positions prescribed in regulation have been superseded by
administrative reorganisation, reference to a particular rank in regulation is
removed also.
New section 207B is a transitional provision which allows that
prescribed forms will be replaced by approved forms but that the prescribed
form will be deemed to be an approved form for the 12 months following
the commencement of the Act.
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� The State of Queensland 1998