Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Corrective Services Legislation Amendment
CORRECTIVE SERVICES LEGISLATION
AMENDMENT BILL 1999
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The Corrective Services (Administration) Act 1988 provides for the
functions and powers of the QCSC related to the administration of
corrective services in Queensland.
This Bill seeks to abolish the Queensland Corrective Services
Commission (QCSC) and the government owned corporation Queensland
Corrections (QC). The amendments also establish the Corrective Services
Advisory Council and provide for a head of power for the new Department
of Corrective Services. These policy objectives were approved by Cabinet
on 8th February 1999 following consideration of the report--Corrections in
the Balance--A Review of Corrective Services in Queensland.
This Bill also seeks to provide express head of power to support the
placement and management of maximum security prisoners and to clarify
the powers in relation to the segregation of prisoners by amending the
Corrective Services Act 1988.
Means of Achieving Policy Objectives
This Bill amends the Corrective Services (Administration) Act 1988 to
achieve the policy objectives outlined above. There are no alternative
methods for achieving these government policy objectives.
In relation to the Maximum Security Unit, the Bill achieves the objective
of ensuring the secure and proper management of maximum security
prisoners for whom mainstream prison accommodation is not suitable.
Secure and proper management is to be achieved by the segregation of
maximum security prisoners subject to maximum security orders from the
2
Corrective Services Legislation Amendment
general prison population and, where necessary, from other prisoners in the
maximum security facility. There is no alternative method for achieving
this government policy objective as these prisoners who will become
subject to a maximum security order have exhausted all other custodial
options before being considered for placement in the maximum security
facility.
Estimated Cost of Implementation for Government
It is anticipated that no additional costs will be incurred by the abolition of
the Commission and the GOC and their replacement by a department.
Amendments to the Corrective Services Act 1988 which relate to placement
of prisoners in maximum security facility have no cost implications.
Consistency with Fundamental Legislative Principles
The amendments to the Corrective Services (Administration) Act 1988
transfer all assets, liabilities and staff to the new structural arrangements,
and do not propose any significant changes to policy which may affect
fundamental legislative principles. The status quo will therefore be
maintained in respect of the operation of corrective services in Queensland.
In respect of the amendments to the Corrective Services Act
1988--placing appropriate maximum security prisoners upon maximum
security orders and accommodating them within a maximum security
facility will not offend fundamental legislative principles. The powers to
restrict the liberty, privileges and other aspects of prison life are clearly
defined and are subject to appropriate review both with the assistance of an
Official Visitor or by the process of judicial review. The amendments are
not proposed to operate retrospectively. The amendments do not effect or
remove any right or liberty expressly provided for in the Corrective Services
Act 1988.
Consultation conducted in Development of Bill
In relation to the amendments to the Corrective Services (Administration)
Act 1988 consultation has occurred with government departments
responsible for legislation affected by this Bill. Other agencies were satisfied
that the operational `status quo' will be maintained through the
3
Corrective Services Legislation Amendment
organisational transition from the QCSC to the department, and that there
were no other issues in respect of these amendments.
In regard to the amendments to the Corrective Services Act 1988
consultation was sought with the Department of Justice and
Attorney-General and the Department of Premier and Cabinet in relation to
the amendments for prisoners subjected to maximum security orders. The
departmental views expressed in relation to these amendments indicated that
the management of this category of prisoner was a Corrections matter alone
and did not overlap into the jurisdiction of these departments.
No department expressed any objections to the proposed amendments or
identified any breach of fundamental legislative principles.
The views expressed were put forward as a departmental view and other
officers concerned did not presume to speak for their respective Ministers.
Community Agencies were consulted with in relation to the implementation
of policy for maximum security prisoners. The general concern expressed
by community agencies was that the Corrective Services Act 1988 did not
provide a clear and express power for the management of maximum
security prisoners. Community Agencies were not consulted in relation to
the contents of this Bill.
NOTES ON CLAUSES
PART 1--PRELIMINARY
The amendments in this Part provide for the commencement of the
Corrective Services Legislation Amendment Bill 1999 from date of
proclamation, except for Part 2--Amendments of Corrective Services Act
1988 which will take immediate effect.
Minor and consequential amendments are identified in the Schedule
attached.
4
Corrective Services Legislation Amendment
PART 2--AMENDMENT OF CORRECTIVE
SERVICES ACT 1988
Clause 4 provides that the Corrective Services Act 1988 is amended by
this part.
Clause 5 provides for the definition of `maximum security facility' to be
included in the definitions section of the Act.
Clause 6 creates a new Section 38A within the Corrective Services Act
1988, providing a head of power for the management of prisoners
according to their security or other classification pursuant to regulation. This
provision provides the basis for the varying conditions of management and
treatment which may be applied to meet the needs of prisoners as they
progress through the Corrections system. The provision also allows the
Chief Executive to proscribe more restrictive custodial conditions or less
restrictive custodial conditions depending upon the classification of
prisoners. These general management powers are subject to the exceptions
listed in the new section 38A (2). Clause 7 establishes a new Subdivision
1A to be inserted into the Corrective Services Act 1988 to specify the
conditions of accommodation and management of prisoners within the
maximum security classification who pose additional risks within a
custodial environment. The purpose of Subdivision 1A is to specifically
provide for this subclass of maximum security prisoners for whom all other
placement options have been exhausted.
The chief executive is responsible for the security and management of
prisons and the safe custody and welfare of prisoners.
However, within the custodial environment there may be prisoners who
have killed or caused serious injury to other prisoners or who have
previously escaped or attempted to escape from high security facilities. This
new Subdivision specifies the chief executive's powers for managing
prisoners who fall into this category to ensure the Department fulfills its
responsibilities.
If there is a risk that a maximum security prisoner will inflict death or
serious injury upon another prisoner, prison staff or other persons, the chief
executive may issue a maximum security order (an MS order). Such an
order may also be made on the grounds that a maximum security prisoner
poses a high risk of escape or poses a substantial threat to prison security
5
Corrective Services Legislation Amendment
and good order.
The effect of a MS order is to place the prisoner into a maximum security
facility (an MS facility) which is separate from the general prison
population. The MS order will contain directions regarding the extent to
which the prisoner:
� is segregated from other prisoners;
� can receive visits involving direct contact;
� receive privileges; and
� access programs and services within the confines of the MS
facility.
The term of a MS order cannot exceed six months but a further order can
be made to run consecutively with a previous order provided the prisoner
has been given the opportunity to make a submission on their behalf in
respect of any further orde
A prisoner subject to an MS order can request that an Official Visitor
review the order. If this occurs, an Official Visitor must review the order
and recommend to the chief executive whether the order should be
confirmed, amended or appealed. While the Official Visitor's
recommendation is not binding, the chief executive must take the
recommendation into account when considering whether the current order is
to be confirmed, amended or repealed. A provision has been created to
ensure that prisoners within a maximum security facility receive regular
reviews by a medical officer, at least every 28 days.
PART 3--AMENDMENT OF CORRECTIVE
SERVICES (ADMINISTRATION) ACT 1988
Act amended in Part 3
Clause 8 identifies the Corrective Services (Administration) Act 1988 as
the Act being amended.
6
Corrective Services Legislation Amendment
Amendment of title
Clause 9 amends the long title of the Act.
Amendment of s 2 (Objects)
Clause 10 deletes reference to the Queensland Corrective Services
Commission from the objects of the Act.
Amendment of s 7 (References to various officers and the commission)
Clause 11 amends various nomenclature associated with the QCSC in
order that the Act reflects the abolition of that agency. In particular,
amendments are as follows:
� Clause 11(1) deletes reference to the commission in the heading
for this section.
� Clause 11(2) amends the section by defining a reference to a
community correctional officer as a reference to a corrective
services officer or employee, employed under the Public Service
Act 1996 as a community correctional officer.
� Clause 11(3) amends the section by defining a reference to a
custodial correctional officer as a reference to a corrective services
officer or employee, employed under the Public Service Act 1996
as a custodial correctional officer.
� Clause 11(4) amends the section by defining a reference to a
general manager of a prison to mean a reference to a corrective
services officer or employee employed as a general manager of a
prison under the Public Service Act 1996.
� Clause 11(5) omits references to officers and employees of the
commission and replaces these references with the new
designations of corrective services officer or corrective services
employee. These designations are defined. In addition this clause
provides for references to the chief executive (corrective services)
in any Act to be taken to be the chief executive or a person or
body taken to be the chief executive under section 23C(5) of the
Corrective Services (Administration) Act 1988.
7
Corrective Services Legislation Amendment
Omission of s 8 (Administration)
Clause 12 deletes reference to the administration of this Act by the
Queensland Corrective Services Commission.
Replacement of Part 2 heading
Clause 13 replaces the heading for this Part to reflect the role of the chief
executive for corrective services.
Omission of Part 2 Division 1
Clause 14 deletes Part 2 Division 1 of the Act that referred to the
constitution and composition of the commission, the duration of
appointment of commissioners, their fees and allowances and their role in
representing the Crown.
Replacement of Division 2 heading
Clause 15 replaces the heading for Part 2 Division 2 by inserting
reference to the functions and powers of the chief executive.
Amendment of s 18 (Functions of Commission)
Clause 16 replaces references to the functions of the commission with
the functions of the chief executive. All functions previously defined as
being the functions of the commission are included in the functions of the
chief executive. There are no additions to this list of functions.
Amendment of s 19 (Powers of Commission)
Clause 17 replaces references to the `commission' with `chief executive'.
These references relate to the exercise of powers necessary for the discharge
of the functions under the Act, such as acquiring property, establishing
facilities, engaging persons and staff, entering into arrangements and
engaging other persons or bodies to conduct operations on behalf of the
chief executive. This amendment also replaces references to `officers' with
`corrective services officers', and `commission' with `department'.
8
Corrective Services Legislation Amendment
Replacement of s 21 (Delegation by commission)
Clause 18 omits reference to the power of the commission to delegate
commission powers by replacing this section with reference to the
delegation powers of the chief executive to appropriately qualified corrective
services officers or employees.
Omission of s 23 (Commission subject to direction of Minister)
Clause 19 omits reference to the commission being subject to direction
of the Minister. This section is not replaced with specific reference to the
chief executive being subject to direction from the Minister, as this is
provided for in s 54 (1) of the Public Service Act 1996.
Renumbering of Part 2 Division 2A
Clause 20 amends this heading by renumbering this division as Division
2A.
Replacement of Part 2 Division 3 and Part 3
Clause 21 deletes those sections of the Act prescribing how and when
commission board meetings will be held. Specifically, times and places of
meetings, provisions for a quorum, notice of meetings and details of
commissioners responsibilities amongst other administration requirements.
A new Part 3 is inserted detailing provisions for the Corrective Services
Advisory Council. These provisions establish the advisory council and
specify the functions, its composition and arrangements for meetings. In
addition, terms of appointment and condition of appointment provisions are
specified. The advisory council will be appointed by the Minister and will
meet between 4 and 6 times each year.
Omission of s65 (Service of documents on Commission)
Clause 22 deletes provision for the service of legal documents on the
secretary to the commission. Service of documents will be upon the Crown
Solicitor on behalf of the State.
9
Corrective Services Legislation Amendment
Omission of ss67--70
Clause 23 deletes provisions for the protection of the Commission's
name, certificates of evidence of a Commission decision and Governor in
Council grants in fee simple to the Commission.
Amendment of s71 (Regulation-making power)
Clause 24 amends the section whereby the Governor in Council can
make regulations with respect to officers and employees of the
Commission. Provision for regulations to be made with respect to
corrective services officers or employees is maintained. In addition this
clause amends references to the `commission' and replaces these with `chief
executive'.
Omission of ss72 and 73
Clause 25 deletes provision for the Act to be reviewed on two occasions.
Each of these reviews has occurred. Once the Corrective Services
(Administration) Act 1998 and the Corrective Services Act 1988 are
amalgamated in a second round of legislative amendments in 1999, a
specific provision will be inserted requiring a regular review of the operation
of that Act. This clause also deletes certain transitional provisions in the
Corrective Services (Administration) Act 1988 for nomenclature used prior
to the establishment of the Commission.
Omission of Part 6, Divisions 2 and 3
Clause 26 omits divisions 2 and 3 from Part 6 which were transitional
provisions following the establishment of the Commission.
Insertion of new part 6 Division 5
Clause 27 inserts new transitional arrangements from the Commission to
the department as Division 5.
Subdivision 1 defines `contract officer' `QC' and `QCSC' and states that
this provision overrides any other provision in either the Government
Owned Corporations Act 1993 or the Government Owned Corporations
(Queensland Corrections Corporatisation) Regulation 1997
10
Corrective Services Legislation Amendment
Subdivision 2 dissolves the positions of chairperson, deputy chairperson
and other commissioners of the QCSC previously provided for in the Act.
The entity known as QCSC is dissolved, and all assets and liabilities of the
QCSC are to become assets and liabilities of the State. Provisions for the
transfer of the persons appointed to the positions of Director-General of
QCSC and Secretary to QCSC to the new department are stated. This
subdivision also provides for the contract of the director-general to become
a contract under the Public Service Act 1996 and for the person to continue
to be engaged with the new department under their existing contract
conditions.
This new section states that s 71 of the Public Service Act 1996--which
provides for officers on contract to revert to a tenured position, at the same
classification level and salary that applied prior to their contract
commencing, if their contract expires--does not apply.
Subdivision 3 dissolves Queensland Corrections (QC) and all assets and
liabilities of QC become assets and liabilities of the State. Provisions for the
transfer of the person appointed to the position of Chief Executive Officer
of QC to the new department are stated. This subdivision also provides for
the contract of the Chief Executive Officer to become a contract under the
Public Service Act 1996--with the exception of s 71--and for the person to
continue to be engaged with the new department under their existing
contract conditions.
Subdivision 4 provides special transition provisions for officers and
employees of QCSC and QC. The clause provides for all officers or
employees of both agencies, and those on contract to either agency to be
transferred to the new department. All contract officers with either QC or
QCSC will be offered positions in the new department and become
contracted officers of the department. This subdivision also provides for the
contracts of these officers to become contracts under the Public Service Act
1996--with the exception of s 71--and where applicable for salary or wage
rates to be preserved. All persons employed as a community correctional
officer, custodial correctional officer and general manager of a prison
continue to be provided for under this clause. In addition this section
ensures that outstanding disciplinary proceedings can be transferred to the
new department following passage of this Bill and that staff accrued
entitlements are transferred to the new department.
11
Corrective Services Legislation Amendment
Lastly this clause states that employment conditions in place will continue
to apply following the transition to the new department for a period of 12
months, whereupon public service directives will apply.
Subdivision 5 provides for the transition of all instruments, pending
proceedings, actions commenced and references to QCSC or QC in other
Acts. All QCSC or QC instruments in existence prior to the
commencement of this amendment are to be continued and applied to the
State. Similarly all outstanding proceedings are to be continued and applied
to the State, instead of QCSC or QC.
All actions commenced by either QCSC or QC are to continue and
remain in force following commencement of this amendment.
This clause also provides for documents certified by the Secretary to the
Commission to continue to have evidentiary value if these are required in
future proceedings.
References to QCSC or QC are taken to be references to the chief
executive or the State (whichever is appropriate) in all other Acts.
Amendment of Schedule (Dictionary)
Clause 28 deletes certain definitions that will no longer be applicable to
this Act following commencement of the amendment. Additional
definitions, such as `advisory council' and `corrective services entity' are
provided.
12
Corrective Services Legislation Amendment
SCHEDULE--MINOR AND CONSEQUENTIAL
AMENDMENTS
The following Acts have been amended to account for the changes in
nomenclature outlined above :
Corrective Services Act 1988
Criminal Code
Criminal Justice Act 1989
Criminal Law (Rehabilitation of Offenders) Act 1986
Criminal Offence Victims Act 1995
Health Rights Commission Act 1991
Juvenile Justice Act 1992
Mental Health Act 1974
Parole Orders (Transfer Act) 1984
Penalties and Sentences Act 1992
Public Trustee Act 1978
Superannuation (State Public Sector) Act 1990
Whistleblowers Protection Act 1994
It is not intended that any of these minor amendments will alter the
meaning of any current provisions, other than to remove references to the
QCSC, Commissioners, QC, and other titles that will be replaced upon
commencement of this Act.
The schedule replaces references to `commission' with `chief executive'
and renames `commission's rules' as `corrective services rules'. In
addition references to the `seal of the commission' as the evidence of a rule
are deleted and replaced by certification by the chief executive. Other
amendments include -
� `chief executive' or `chief executive (corrective services)' in place
of `commission';
� `corrective services entity' in place of `commission entity ';
13
Corrective Services Legislation Amendment
� `corrective services officer or employee' in place of `an employee
or officer of the commission';
� `a corrective services officer' in place of `an officer of the
commission';
� `directions of the chief executive' in place of `directions of the
commission';
� `be the chief executive' in place of `be the commission'.
Current definitions of `defined office holder' and `commission entity'
have been omitted.
� The State of Queensland 1999