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Correctional Services Regulations 2014 - submission to Commissioner Corrective Services

The Law Society Northern Territory (the Society) has previously outlined its concerns in relation to the Correctional Services Act (Act). The Society?s concerns about the Act remain. These concerns are applicable to the Regulations. The Society makes the following further comments:
  • Provisions of the Regulations appear to go beyond what is necessary for the purpose of the Act ? ultra vires;
  • Inconsistencies between the Regulations and the Act will create uncertainty and expense;
  • Regulations do not support the work of corrections staff in administering corrections facilities;
  • The Regulations will be costly in their operation and the Society is concerned that these costs have not been considered or allowed for.

Ultra vires

A direction or decision making power may only be exercised for the purpose which it was given. If exercised for some other purposes or mala fides the decision will be ultra vires[1].The Society is concerned that aspects of the Regulations are inconsistent with the Act and appear to go beyond what is reasonably necessary to achieve the purpose of the Act. This will lead to uncertainty for decision makers and could in effect undermine otherwise legitimate or necessary decisions.

All visitors to the prison (including lawyers, judges and members of parliament) can be directed to provide saliva, blood or urine test in order to enter the prison. The regulations prescribe alcohol and drug tests. There is no threshold requirement that a reasonable belief must be formed that the safety or security of the prison requires such testing. Regulation 12 (2) provides that for the direction to be reasonable, it is not necessary that the correctional services officer suspects the person has alcohol or drugs in his or her body.

Mandating saliva, blood and urine tests is an exceptional invasion of privacy and thus the scope of any such power will be read in favour of the visitor. The regulations make it clear that the tests are used purely to detect the presence, or ascertain the concentration of, alcohol or a drug. Thus the Regulations suggest inconsistent purposes for the testing. In the Society?s submission, despite the content of the Regulations, the direction to undergo such testing could not be exercised without reasonable suspicion that a crime has been committed and thus would exceed any power anticipated in the Act.

It is difficult to conceive of a legitimate purpose for such testing but to provide support for the decision of a corrections officer to deny entry. Thus the Society submits that the results of the test would need to be available in a timely way to ensure corrections officers are able to exercise the otherwise broad discretion to deny entry. This would require almost instant assessment such that they could in any way be relevant to a decision to allow admission of a visitor to the prison. This would require the presence of suitably qualified health professionals and experts ?on-hand? during visiting hours, and safe facilities for administering and analysis of the test. The Society is at pains to understand how such information would be relevant to a decision to allow or refuse entry and which has the ability to confuse and undermine decision makers and open avenues for challenge. The Society submits that this and similar purported ultra vires powers be removed.

Despite the likelihood that these provisions will not be used on the general public, the Society submits that their presence is not reasonable or necessary to achieve the purposes of the security or good order of corrections facilities. The General Manager already has broad powers for denying entry, without the need to conduct intrusive and expensive testing. The Society is similarly concerned that such inconsistencies open avenues for costly appeals.

The provisions of r.12 may be reasonable if confined to workplace testing of employees for the purposes of health and safety.

Section 29AAX[2] of the Traffic Act provides for a limitation of the use of the sample of blood taken from a person who is suspected of committing and offence under that Act. The Society recommends that a similar provision be placed into the Corrections Act.

This is in contrast to s.201 (2) of the Act which appears to allow for criminal proceedings to be commenced because someone has consumed or used alcohol or drugs. Neither the use or alcohol or drugs is in itself an offence under the Corrections Act.

The Society recommends the removal of such inconsistencies or at least, alignment with the Traffic Act and limitation of the application of testing to situations under s.37 of the Act and not to visitors in general.

Regulations curtail the provisions of the Act

The Society is similarly concerned that the prescriptive Regulations may in effect curtail the otherwise broad discretion in the Act. By way of example the General Manager has the power to refuse visitors entry to the prison. Whilst it may be envisioned that an ability to direct visitors to undergo drug testing will rarely be required it is the Society?s submission that their presence in the Regulations may equally give rise to the presumption of their use and in the context of the Act failure to resort to such testing may undermine a decision not to allow entry. The Regulations thus leave decisions open to challenge where:

  • further testing has not been undertaken, leaving open a presumption that there was no reasonable basis for their use and the refusal of entry was unreasonable;
  • further testing has been undertaken and results (negative or inconclusive) undermine previous conclusions of the decision maker;
  • further testing is undertaken but results of that testing are not available in sufficient time to inform the decision maker and thus cannot be taken into account;
  • Further testing is not undertaken because it is too costly and adequate facilities and staff are not available.

The Society submits that this and similar inconsistencies be removed to provide certainty for decision makers.

Expense

The Society is concerned that the Regulations have the potential to generate costly administrative processes. By way of example; the Regulations prescribe a variety of medical tests requiring instant analysis and reporting.

The collection of saliva, urine and blood generates ethical and storage obligations. The Society does not believe the collection of this information is justified and is concerned that the information could be misused and adequate safeguards should be provided around the purpose and use of this private information.

Out of step with Australian corrections

The Society notes that the Territory will be the only jurisdiction in Australia which provides such broad powers to allow for random invasive testing on visitors to the facility, including Judges, lawyers and members of parliament. The Society submits that the absence of such power in other jurisdiction indicates that they are unnecessary. The Society would not recommend that the Northern Territory stand alone on such a significant invasion of liberty of innocent civilians.

Part 2 - Misconduct Proceedings

The Society shares concern regarding the inadequacy of the current misconduct proceedings process. Of particular concern is the ?inequality of arms? where the inmates are expected to represent themselves in proceedings against lay professionals.

The Society considers this inequality could be overcome by the inmate having access to legal assistance. Thus the regulations should be amended to ensure that:

  • prisoners have an express right to contact a legal representative for assistance in preparing a defence; and
  • prisoners have an express right to address the issue of the punishment or penalty they may receive.

The Society recommends amendment of these provisions to ensure a fair hearing.



[1] R v Toohey; ex p Northern Land Council (1981) 151 CLR 170 at 193, 215-216, 261-265. An example or ?ulterior purpose? is the argument that a particular prison regime was imposed upon a prisoner for disciplinary rather than administrative reasons: see Groves, ?Administrative Segregation of Prisoners? (1996) 20 MULR 639.

[2] The fact that a sample of a person's blood, when analysed for this Act, indicated the presence of a prohibited drug cannot be used in evidence in any proceedings in a court under the Misuse of Drugs Act.

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