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Queensland Corrective Services Legislation Amendment
CORRECTIVE SERVICES LEGISLATION
AMENDMENT BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The main objects of this Bill are:-
1. To insert a new division in the Corrective Services
(Administration) Act 1988 (the Administration Act) to provide:
(a) for the outsourcing of corrective services in whole or in part
by the Queensland Corrective Services Commission (the
Commission) with the proviso that only a GOC may
manage juvenile detainees on the Commission's behalf;
(b) that an entity engaged by the Commission to perform
corrective services may be authorised to exercise specified
powers and functions of the Commission or its officers
which it may delegate to the entity's own employees;
(c) that in the exercise of authorised powers and functions, the
engaged entity may be taken to be the Commission and that
its employee delegates may be taken to be officers or defined
officers of the Commission;
(d) that a GOC engaged to conduct the Commission's juvenile
justice operations is subject to directions from the
Commission in this regard and must comply with such
directions;
(e) that while the Commission may engage an entity to
discharge its responsibilities in respect of juvenile detainees,
prisoners and offenders in the community, it retains
corrective service responsibilities.
2. To amend provisions in the Administration Act deeming the
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Commission to be the owner of property used for corrective
services and clarify that some contracting entities may presently
own such property or may have such property assigned to them
in the future.
3. To declare the validity of instruments of authorisation and
delegation given to employees of entities engaged by the
Commission prior to commencement of this legislation and
declare that any act that could lawfully have been done by
Commission officers or employees was lawfully done by
employees of the entities.
Reasons for the objectives and how they will be achieved
The Government has announced that it will corporatise the service
delivery elements of the Commission. This means that the management of
all prisons and community corrections centres currently operated by the
Commission, all community corrections services and facilities and all
juvenile detention centres will be contracted to the government owned
corporation to be known as QCORR. However, while private entities may
compete with QCORR for the management of adult corrective services, the
Commission may engage only a government owned corporation to manage
juvenile detainees. The legal framework which gives contracting entities
and their employees access to Commission powers and functions has been
identified as inadequate. It does not allow contracting entities to delegate
fundamental correctional powers to their employees. Employees of
contractors have insufficient authority to exercise the full range of powers of
Commission officers even though they must often perform identical duties
to their Commission counterparts. This has led to uncertainty and lack of
flexibility and is inconsistent with the intention to outsource the entirety of
the Commission's operations to external providers. The main objects of this
Bill will be achieved by the insertion of a new division in the Administration
Act setting out a scheme for the devolution of corrective service powers and
functions to contractors and their employees. To ensure the quality of
services, the Commission may devise limitations to qualify the exercise of
powers and functions contained in instruments of authorisation and
delegation.
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Administrative cost to Government of implementation
There are no anticipated costs to Government consequent to the passage
of this Bill. The Commission delegates its powers and functions to its own
officers. Since contracting entities have no power at law to sub-delegate, the
Commission has issued delegations to the employees of those entities
needing to exercise Commission powers. It also authorises employees of
private providers to exercise the powers and functions that the law gives to
officers of the Commission. This has resulted in a complex "paper trail"
and an inefficient use of resources.
With the implementation of the legislation, administrative arrangements
for devolving powers will be simplified. Authorisations to each contracting
entity will set down powers and functions which the entity may itself use or
may delegate. Limitations on the exercise of delegated powers will be
conveyed in authorisations issued by the Commission.
Individual delegation of powers and functions to each employee of a
person or body engaged by the Commission will be the responsibility of
that person or body which must also bear the accompanying costs.
There are no administrative costs associated with the assignment of
property to public contracting entities such as a government owned
corporation. The cost of valuation and administration of property
assignment will be offset against required savings to produce a budget
neutral outcome. Any assigned property remains a Government asset.
Declaratory provisions in the Bill will not produce administrative costs.
On the contrary, they will remove potential legal challenges by validating the
legal position of contracting entities and their employees in respect of past
acts. Given that the cost of any legal challenges would essentially be borne
by Government, the cost savings could prove significant.
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. One of these criteria is
that the Bill allows the delegation of administrative power only in
appropriate cases and to appropriate persons. This criterion is
repeated in section 4(4) of the LSA as one means of determining
whether a Bill has sufficient regard for the institution of
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Parliament.
The new section 23C of the Bill outlines the scheme for devolving
Commission powers and the powers of Commission officers to
contractors and their employees. Section 23C(6) provides that
contractors authorised by the Commission to exercise specific
corrections powers or functions, may also be permitted to
delegate such powers to their employees. It may be perceived that
this scheme allows administrative powers to be distributed to
contractors and their employees inappropriately or
indiscriminately and without the necessary safeguards. A further
objection could be that the Commission cannot supervise the
delegation of its powers by a contractor and thus cannot be certain
that the contractor's delegates will properly exercise sensitive
administrative powers in the corrections context.
In response, it must be argued that authorisations may be made
subject to any conditions imposed by the Commission which has
ultimate responsibility for the security, safe custody and welfare
of prisoners. Delegation of powers by authorised entities may be
made only to employees who are "appropriately qualified". This
expression is defined to include the holding of "qualifications,
experience or standing appropriate to exercise the power."
Authorisations to contractors may be subject to any conditions
that the Commission chooses to impose. For example, the new
section 23C(4) makes it clear that particular powers may be
delegated only to particular employees. The Commission can
stipulate that only properly accredited employees of a contractor
may exercise specific delegated authority. Further, subsection
(4)(b) ensures that particular obligations to be observed by a
contractor's employees may be inserted as a condition of the
delegation.
In addition, the contractor (as delegator) is bound to observe
section 27A of the Acts Interpretation Act 1954. Employee
delegates must also adhere to the statutory duties imposed by this
provision.
2. One of the criteria in section 4(3) of the LSA is that legislation is
not to adversely affect rights and liberties or impose obligations
retrospectively. The Administration Act allows an authorised
person or body of persons engaged by the Commission to
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exercise powers and functions of Commission officers and to
exercise delegated authority in respect of Commission powers. It
does not expressly allow employees of a person or body to
exercise the same powers. Employees of entities engaged
currently and in the past by the Commission have been issued
with authorisations and delegations while not personally engaged
by the Commission. One of the objects of the Bill is to declare
that any such instruments are taken to have been validly given.
Further, any act by the entity or an employee of the entity in
providing a corrective service is taken to have been done lawfully
if it could have been done by the Commission or a Commission
officer exercising the same power. It may be argued that such
validation affects prisoner rights and liberties retrospectively.
However, there is no evidence that any prisoner or ex-prisoner is
adversely affected by validation of these acts. Altered provisions
will merely reflect the prevailing policy and intent at all times.
Exercise of powers followed the assumption by all relevant
parties that what was thought to be the law was in fact the law.
There is considerable public interest in having the legislation
corrected and the actions of relevant parties validated.
Consultation
The content of this Bill has been discussed with officers in the
Department of Justice including the office of the Acting Crown Solicitor.
Queensland Treasury, the Department of Training and Industrial Relations,
the Queensland Police Service, the Department of the Premier and Cabinet,
the Office of the Public Service and the Audit Commission Implementation
Office have also been consulted.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
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Queensland Corrective Services Legislation Amendment
PART 2--AMENDMENT OF THE
CORRECTIVE SERVICES (ADMINISTRATION) ACT
1988
Clause 2 provides that the Corrective Services (Administration) Act 1988
is amended by this part.
Clause 3 inserts a new section 7 (References to various officers and the
commission) to provide that a reference to a community correctional officer,
a custodial correctional officer, a general manager of a prison or an officer
or employee of the commission in any Act is a reference, not only to a
person appointed in that capacity by the Queensland Corrective Services
Commission (the Commission) but also to a person taken to be such an
officer or employee under the new section 23C. Further, the new section
7(5) provides that a reference to the Commission in any Act is a reference
not only to the Queensland Corrective Services Commission constituted
under section 9 of the Administration Act but can also refer to a person or
body taken to be the Commission under the new section 23C(5).
Clause 4 amends section 19 (Powers of Commission) by making the
Commission's engagement power subject to section 23B(2). Thus the
Commission may only engage a GOC to carry out its juvenile justice
operations. Clause 4 also inserts a reference to the Penalties and Sentences
Act 1992. This ensures that the Commission's operations under that Act are
operations which the Commission may engage a person or body to conduct
on its behalf.
This clause also omits subsections (3) and (4) of section 19. The content
of these provisions is included and enlarged upon in the new section 23C.
Clause 5 amends "Commission's officers" to "detention centre officers"
to allow the Commission to make rules for the conduct of persons working
in detention centres who are employees of a GOC rather than Commission
employees.
Clause 6 amends section 21 by inserting a new heading to clarify that this
provision deals with delegations by the Commission within that agency
only. Section 21(c) is omitted as the Commission will not in future delegate
its powers directly to a person or body it engages to conduct its operations
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on its behalf. A new subsection is inserted in section 21 to ensure that a
person or body of persons taken to be the Commission under the new
section 23C(5) will not have the power to delegate under section 21.
Clause 7 inserts a new division 2A making significant changes to the
way powers are distributed to persons or bodies engaged by the
Commission under section 19(2)(f).
New section 23A defines "juvenile justice operations" to mean any
"involvement" of the Commission under any provision of the Juvenile
Justice Act 1992. When the latter Act was amended in 1996, it gave specific
powers, functions and responsibilities to the Commission in respect of
juvenile detainees. The Administration Act gives the Commission broad
powers in respect of juvenile detention centres, detainees and persons
working in detention centres. The nature of the Commission's involvement
is contained in the Juvenile Justice Act.
New section 23A also defines "offenders" widely. It will extend to
include all children and adults in the Commission's custody, persons on
parole orders and persons subject to community-based orders from a Court.
New section 23B provides that the Commission's power to engage a
person or body to perform its operations on its behalf extends to the
outsourcing of all or any corrective services for all or any offenders.
However, the Commission may only engage a GOC to carry out its juvenile
justice operations.
New section 23C creates a structure for the authorisation and delegation
of the Commission's powers to a person or body it engages. It involves a
two-step process. In the first step, the Commission may authorise the
engaged person or body to exercise the powers and functions of a
"commission entity" under any Act. A "commission entity" is defined
under section 23C(12) to mean the commission, a defined office holder or
an officer or employee of the commission. In the second step, the engaged
body may be permitted to delegate its authorised powers to its employees
providing they are appropriately qualified. Subsections (3) and (4) clarify
that any authorisation of a power to an engaged body may be subject to
conditions including a requirement that delegation of the power may be to
particular employees only and that particular obligations are to be observed
by employees in exercising their delegated powers. Section 23C(7) states
that section 27A of the Acts Interpretation Act 1954 applies to delegations
given to employees of an engaged body. The full text of this provision is
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attached.
(It should be noted that section 27A contains the standard set of
provisions that apply to delegations under Queensland legislation generally.
The section provides for delegation of powers but not delegation of
functions. It deals with what is effectively delegation of a function by
enabling delegation of a power to include "doing an act or making a
decision for performing a function". (See section 27A(1A).) For this
reason the new section 23C, while providing for the authorisation of powers
and functions, expresses the implementation of the authorisation in
delegations as a delegation of powers only.)
Employees of entities contracting with the Commission will derive
corrective service powers and functions pursuant to subsections (6) and (8)
of section 23C. Subsection (6) allows an engaged body to delegate
Commission powers, which it is authorised to exercise, to its employees.
Subsection (8) provides that where an employee is delegated the powers and
functions of Commission officer under an Act (as distinct from the
Commission's powers), the employee is taken to be the officer named in
that Act for the purpose of the power.
Subsections (5) and (8) of section 23C deal with what happens when an
engaged body exercises the powers or functions of the Commission under
an Act or an employee of the body exercises the powers and functions of an
officer of the Commission under an Act. The respective provisions ensure
that, in the exercise of such powers, the engaged body may be taken to be
the Commission for the purposes of the power and the employee of the
engaged body may be taken to be the relevant officer or employee of the
Commission, for the purposes of the power.
The new section 23C(10) is intended to deal with particular provisions
which allow a commission entity and any person or body deemed or taken
to be a commission entity to delegate the powers the entity itself receives by
delegation. The provision ensures that the relationship created by exercise
of the sub-delegation power is not intended to be affected by the new
provisions.
New section 23D provides that the Commission may give appropriate
directions relevant to its juvenile justice operations to the GOC engaged to
manage the Commission's juvenile detention centres. The GOC must
comply with any direction and it is binding on an employee or person
engaged by the GOC or any person detained in or visiting the detention
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centre. Non compliance with a specified direction by an officer of a GOC
can attract a monetary penalty of up to 50 penalty units (see new section
71(2)(d)).
New section 23E acknowledges that while the Commission may cease
for practical purposes to be custodian of offenders in custody or in day to
day control of offenders in the community, it nevertheless retains
responsibilities for all offenders and that similar responsibilities are
assumed by the person or body engaged to perform its corrective service
operations.
New section 23F establishes that any act done under an engagement,
authorisation or delegation or a copy thereof may be evidenced by a
document in that regard which is evidence that the act was done lawfully.
Clause 8 amends section 63 (commission deemed to be the owner of
property) by providing that (for the purpose of any proceedings), the
Commission is deemed to be the owner of each prison, detention centre and
community corrections centre unless such an institution is owned by a body
other than the State. A new paragraph is inserted to clarify that the
Commission is not taken to own property incidental to an order
administered by a body it engages to supervise community based orders. A
new subsection (1B) is inserted to clarify that the Commission is not taken
in any proceedings to be the owner of property which it has assigned by law
(for example, in the schedule to a regulation under the Government Owned
Corporations Act 1993) to a body it engages to perform corrective services.
The new subsection (3) clarifies that reference to the Commission cannot
include a person or body taken to be the Commission in this section.
Clause 9 amends section 71 by inserting a new heading
"Regulation-making power" and omitting that part of section 71(2)(b)
referring to persons authorised under section 19(3) which is now omitted.
A new subsection (2)(d) allows the making of a regulation imposing a
penalty of not more than 50 penalty units for contravention of a specified
direction under section 23D.
Clause 10 omits the heading of part 5A which is relocated as division 2
of part 6.
Clause 11 effects renumbering of sections 72A and 72B as sections 75
and 76.
Clause 12 inserts a new part 6 division heading.
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Clause 13 amends part 6 (transitional provisions) by inserting Division 3
dealing with transitional and declaratory provisions.
New section 77(1) provides that authorisations or delegations given or
purportedly given prior to the commencement of this provision to an
employee of an entity engaged to perform Commission operations are taken
to have been validly given.
Subsections (2) and (3) provide that where an act done by an engaged
entity or by that entity's employees in the course of their employment, for
the purpose of providing a corrective service, would have been lawful if the
entity were the Commission or an officer or employee of the
Commission--the act is taken to have been done lawfully notwithstanding
that the relevant authorisation or delegation was defective or non-existent.
Subsection (4) states the names of the four entities whose employees are
affected by this provision.
Clause 14 amends the Dictionary provisions by inserting the titles of
three defined officers of the Commission and referring to the new section 7
where references to these officers are given an enlarged meaning. The
expression "detention centre officer" is also defined. The definition of
"function" in relation to a Commission entity clarifies that a function
includes a responsibility and anything that the Commission entity may or
must do.
PART 3--AMENDMENT OF THE CORRECTIVE
SERVICES ACT 1988
Clause 15 provides that the Corrective Services Act 1988 is amended by
this part.
Clause 16 omits the definitions of "director of community corrections"
and "director of custodial corrections" in Section 10 as these positions will
no longer be necessary with proposed corporatisation of corrective services.
The clause also omits the titles of defined officers and inserts new
definitions referring to the new section 7 of the Administration Act where
references to these officers are given an enlarged meaning. The clause
omits part of the existing definition of "commission" to reflect the enlarged
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meaning of "commission" in the new section 7 of the Administration Act.
Clause 17 omits reference to the director of custodial corrections in
section 14.
Clause 18 omits reference to the director of custodial corrections in
section 18.
Clause 19 omits reference to the director of custodial corrections and the
director of community corrections and inserts the titles of those officers
whose powers may be conferred on an inspector appointed by the
Commission.
Clause 20 omits reference to the director of custodial corrections in
section 45.
Clause 21 amends section 109 by omitting reference to an authorised
person or body engaged by the commission under the Administration Act
as this reference is no longer necessary. The new section 23C of the
Administration Act will capture this function.
Clause 22 omits reference to the director of custodial corrections and the
director of community corrections in section 136(2). The position "officer
of the commission" is inserted as the appropriate officer to perform the
function described in this provision.
Clause 23 omits reference to the director of custodial corrections and the
director of community corrections in section 207(a).
PART 4--AMENDMENT OF THE PENALTIES AND
SENTENCES ACT 1992
Clause 24 provides that the Penalties and Sentences Act 1992 is amended
by this part.
Clause 25 omits the definition of an "authorised commission officer"
which is now defined in section 4A.
Clause 26 inserts a new section 4A to define the meaning of an
"authorised commission officer". This is now defined as either an officer
or employee of the Commission or an employee of a person or body
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engaged under section 19(2)(f) of the Administration Act. In either case,
the employee must be authorised by the Commission which does not
include a person or body taken to be the Commission under section 23C(5)
of the Administration Act.
ACTS INTERPRETATION ACT
27A.(1A) Authority to delegate a person's or body's powers includes
authority to delegate doing an act or making a decision for
performing a function of the person or body.
(1) If an Act authorises a person or body to delegate a power,
the person or body may, in accordance with the Act and any
other applicable law, delegate the power to--
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by
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the reference to the title of the office concerned.
(2) The delegation may be--
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation, must be in,
or evidenced by, writing signed by the delegator or, if the
delegator is a body, by a person authorised by the body for
the purpose.
(3A) If the delegator is a body, the delegation may be made or
revoked by a resolution of the body.
(3B)All conditions and preliminary steps required for the exercise
of a delegation are presumed to have been satisfied and
performed unless the contrary is established.
(3C) Laws apply to the delegate in the exercise of a delegated
power as if the delegate were the delegator.
(4) A delegated power may be exercised only in accordance with
any conditions to which the delegation is subject.
(5) The delegate may, in the exercise of a delegated power, do
anything that is incidental to the delegated power.
(6) A delegated power that purports to have exercised by the
delegate is take to have been properly exercised by the
delegate unless the contrary is proved.
(7) A delegated power that is properly exercised by the delegate
is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a power is dependent on
the delegator's opinion, belief or state of mind, then, when
exercised by the delegate, the power is dependent on the
delegate's opinion, belief or state of mind.
(8A)If--
(a) the delegator is a specified officer or the holder of a
specified office; and
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(b) the person who was the specified officer or holder of
the specified office when the delegation was made
ceases to be the officer or holder of the office;
then--
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the
office concerned is taken to be the delegator for the
purposes of this section.
(8B)If--
(a) the delegator is a body; and
(b) there is a change in the membership of the body;
then--
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be
the delegator for the purposes of this section.
(9) If a power is delegated to a specified officer or the holder of
a specified office--
(a) the delegation does not cease to have effect merely
because the person who was the specified officer or the
holder of a specified office when the power was
delegated ceases to be the officer or the holder of the
office; and
(b) the power may be excercised by the person for the time
being occupying or acting in the office concerned.
(10) A power that has been delegated may, despite the delegation,
be exercised by the delegator.
(10A)The delegation of a power does not relieve the delegator of
the delegator's obligation to ensure that the power is
properly exercised.
(11) Subject to subsection (12), this section applies to a
subdelegation of a power in the same way as it applies to a
delegation of a power.
(12) If an Act authorises the delegation of a power, the power
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may be subdelegated only if the Act expressly authorises the
power to be subdelegated.
(13) Writing purporting to be, or to contain, a delegation, or the
revocation of a delegation, is evidence of the delegation or
revocation.
(14) A certification signed by the delegator (or, if the delegator is
a body, by a person authorised by the body for the purpose)
stating anything in relation to a delegation is evidence of the
thing.
(15) A document purporting to be a certificate mentioned in
subsection (14) is taken to be the certificate , and to have
been properly given, unless the contrary is established.
(16) In this section--
"power" includes doing an act or making a decision for the
purpose of performing a function.
� The State of Queensland 1997