New Correctional Services Bill - submission to Minister Elferink

We refer to correspondence dated 27 March 2014 which provided us with a copy of the draft Correctional Services Bill seeking our comments by 11 April 2014.

Whilst the Society thanks you for the opportunity to comment on the draft Bill the Society is concerned about the unreasonably short timeframe for response and the lack of prior consultation. As at 14 April 2014 the Society was advised that further amendments to the Bill would be forthcoming however these have not eventuated. As such the Society?s comments are limited to overarching themes and concerns of a general nature based on v9 dated 2 April 2014. The Society notes that the current Act has been in force for over 30 years and that the draft Bill provides less protection than currently exists.

The Society is concerned that the Bill does not provide for

?various degrees of confinement in a safe (for the offender and staff), secure, humane and transparent manner, and to provide programs that give offenders the opportunity to reform and successfully reintegrate into society.?[i]

The Bill does not ?support the rule of law, protect and advance human rights, and contribute to the stability and security of the [Northern Territory].[ii] The Society is concerned that the Bill establishes a corrections system that does not meet the United Nations Standard Minimum Rules for the Treatment of Prisoners that guide detention in Australia. In stark contrast to other Australian jurisdictions and the minimum standards the Bill does not provide for:

• Access to legal representation
• Medical care
• Food, clothing exercise
• Rehabilitation
• Visits and Repatriation
• Separate youth detention

Legal Representation

The Bill amends the provision in the current legislation to impose additional requirement that solicitors visits must be reasonable as well as with prior permission. The Society is of the view that this is a significant fetter on access to legal representation and has significant potential for abuse. The Society has not been informed of any incident that has occurred that would warrant such amendment and opposes the amendment in its entirety.

Furthermore the Society is of the view that the decision regarding whether an interpreter is required is a forensic decision for the legal practitioner with the practitioner is duty bound to determine. Thus the Society is concerned about the proposal regarding the requirement that approval from the general manager is required.

All this is not to say that a Legal Practitioner is entitled to see a client when it is unreasonable or would be unsafe to do so.

The Bill also purports to unreasonably interferes with legal professional privilege without any reasoned basis and to the detriment of the rule of law. The Society wholeheartedly rejects the proposal that a General Manager may intercept privilege mail in the fashion proposed. As noted above the Society has not been furnished with any rationale that would warrant the proposal contained in the Bill and thus submits that the current provisions satisfactorily balance the safety and security of the prison against the confidentiality communications with ones legal representative, a cornerstone of our justice system.

Medical Care

The Society is concerned regarding provisions where the General Manager is able to override the recommendations of health professionals in the provision of health care. Whilst the Society acknowledges that the General Manager must at all times balance issues of safety and security with the health needs of inmates, the General Manager is not in a position to ?second guess? what health care is required. The Society is concerned that unless the General Manager is medically qualified it would expose inmates to unreasonable risks of harm.

The Society is also concerned about the proposal that the General Manager of a prison has access to inmates? health record. That is not to say that an appropriate and thorough health assessment ought not be undertaken and the Society notes that this is not provided for in the Bill. The Society would consider that a report by a health professional with access to the health record would provide adequate information to ensure the safe and secure incarceration. At the very least an inmate ought be invited to consent to the sharing of health information and only where a health practitioner determines there is an issue of safety or security should the practitioner be permitted to disclose confidential health information.

As noted above the Society has not been presented with any reasonable basis for the proposed infringement of health privilege. In the Society?s view the safe and secure incarceration and corrections service could be maintained without such provision.

Food, clothing, exercise, rehabilitation

The Society is concerned that the Bill does not provide for rehabilitation. As rehabilitation is a primary purpose of a modern corrections system the Bill should require it to be provided and its omission is alarming. The failure to require the Commissioner to provide rehabilitation casts a long shadow over the Bill. This is highlighted as the Bill proposes a ?user pays? system.

The Society is also concerned that the Bill does not articulate that food, clothing and exercise will be provided. This is in stark contrast to the current Act and other Australian jurisdictions. The Society is of the view that as the Bill proposes a ?user pays? system that the provision of these items should be carefully articulated.

Money

The Bill purports to create a system of user pays. The Society is concerned because the power to appropriate inmates? money is without limit. There is potential to create a two tier system for those inmates capable of earning and those that are not. The limitless nature of these provisions allows for the creation of an indentured labor force. The Society urges clear articulation and limit on what can be taken from inmates income and how that will be accounted for with adequate measures to prevent abuse and strike the correct balance.

Youth

The Society is concerned that the provisions in relation to youth do not meet the minimum standard. Whilst the Society can understand that the destruction of a facility may need emergency measures the Society is of the view that the provisions in the Bill could be used for behaviour management and are open to abuse. This conflicts with the duty to keep youth separate from adults. The Society is also concerned regarding how the ?best interests test? will be applied.

Visits and repatriation

The Society is concerned that the Bill does not provide for repatriation of prisoners. Whilst the Society was presented with concerns regarding ?cost shifting? within agencies this is not sufficient reason to abandon the concept of repatriating inmates to their home. Insufficient evidence was presented that abuse of the repatriation system by inmates was occurring or was in any way widespread. The Society strongly urges the retention of the requirement to repatriate prisoners upon release.

The Society is concerned that the Bill does not articulate requirements to keep prisoners close to family or to facilitate family visits.

Misconduct Proceedings

The Society shares concern regarding the current misconduct proceedings process. The Society notes that it is proposed to introduce video recording of these proceedings. The Society looks forward to providing further comment on this aspect of the Bill.

Interpreters

The Society is strongly of the view that any modern corrections regime should mandate the use of trained or qualified interpreters.

Home Detention

The Society has significant concerns regarding the processes for review and revocation of administrative home detention as outlined in the Bill. The Society is keen to provide further feedback on these provisions.

The Society has previously provided the Law Council of Australia?s Principles Applying to Detention in a Criminal Law Context and Rule of Law Principles to assist in highlighting the Society?s concerns.

In the circumstances the Society seeks broad ranging revision of the Bill such that the Northern Territory will achieve the stated aim of a truly modern corrections system to meet the needs of Territorians for decades to come.