Correctional Services Bill 2014 - submission to Commissioner Corrective Services

With respect to the latest version of the Bill we make the following recommendations:

Recommendation 1. Articulate the Objects of the Act;

Recommendation 2. Amend the terminology of a prisoner?s legal representative;

Recommendation 3. Delete the words ?by appointment? in s.96;

Recommendation 4. Remove the contradictory provision in s.155(4);

Recommendation 5. Reinsert s.51 (3) of the current Act relating to alleged misconduct of legal practitioners;

Recommendation 6. Amend s.85(2) to ensure General Manager complies with recommendations of a Health Practitioner;

Recommendation 7. Amend s.91 to include the provisions of s.80 of the current Act;

Recommendation 8. Reinsert the provisions contained in the current Act in relation to food, clothing and exercise;

Recommendation 9. Clarify s.161(b) of the Bill in relation to the fees and charges payable;

Recommendation 10. The hours of work be prescribed ?s.54;

Recommendation 11. Amend s30 to include the written report of the Official Visitor to be published;

Recommendation 12. Insert provisions to require the use of Interpreters as required and in particular in misconduct proceedings;

Recommendation 13. Review the provisions relating to Biometrics and Privacy;

Recommendation 14. Include sections from the current Act which references to the Traffic Act in relation to drug and alcohol testing.

Standards

We note the Northern Territory, along with every other jurisdiction in Australia, is a signatory to the ?Standard Guidelines for Corrections in Australia?[1] (Guidelines) which is a statement of national intent.

Guideline 1.21 states ?Prisoners are sent to prison as punishment and not for punishment.?

It is well known that these Guidelines are unenforceable. The well-known academic criminologist and former Inspector of Custodial Services for Western Australia, Professor Richard Harding, commented on the Guidelines as follows:

Prisoners do not in common law jurisprudential model possess rights in relation to their conditions and treatment. Rather the imprisoning authority possesses non-enforceable obligations. These may seem to be reasonable comprehensive ? as for example in relation to the ?Standard Guidelines for Corrections in Australia-but they are not legally binding in the sense of giving prisoners a right of action against prison authorities in a court of law.[2]

It is apparent from communications with the Commissioner for Corrections, and the Minister that it is the intention of the legislature that the operation and management of corrections will be compliant with the principles enshrined in the guidelines. Unfortunately on the plain reading of the Bill this intention is not apparent. The Society would strongly urge that the Bill reflect this intention to avoid ambiguity and recourse to extrinsic material pursuant to s62B Interpretation Act. It is the Society?s submission that these intentions can best be captured in clearly articulated objectives within the Bill. The Society would seek further that specific rights and obligations should be enshrined in the Bill.

Objectives

The Society is concerned that the ?Objects of the Act? that once formed part of the draft Bill have been removed. The objects of the initial draft provided for:

• people who are ordered to be held in custody to be removed from the general community and placed in a safe, secure and humane environment;
• people who are not required to be held in custody but who are required to be kept under supervision are supervised in a safe, secure and humane manner;
• the safety and security of people who are the custodians or supervisors of those in custody or under supervision;
• rehabilitation of people in custody or under supervision with a view to their reintegration into the general community; and
• consideration of the rights and interests of victims.

These objectives were consistent with the intention of the Department of Correctional Services (the Department).[3] The Society notes that the safety and security of the system of corrections is an objective of the scheme which is not adequately addressed by the above. The inclusion of such objectives would provide appropriate guidance for decision makers on the challenging balance of safe custody, community expectations and rehabilitation needs.

The Society submits that the intention of the legislature should be enshrined in the legislation it passes. The Government has publically stated its intention to rehabilitate prisoners[4]. Further the Department annual report outlines in its strategic priorities to implement the Pillars of Justice law reform strategy to reduce re-offending through employment, education and programs. The Society applauds these priorities and is concerned that failing to enshrine these objectives in the legislative instrument is a retrograde step which may create impediments to achieving these goals rather than facilitate their attainment.

The Society supports reinserting the objects and cementing the Government?s commitment to rehabilitation, reducing recidivism and the safety of the people of the Territory. As rehabilitation is a primary purpose of a modern corrections system the Bill should ensure that the legislative framework clearly articulates that objective to ensure those purporting to exercise powers under that enactment are empowered to do so. The complete omission of rehabilitative intention from the Bill is alarming and casts a long shadow over the Bill and may impede the Commissioner from providing rehabilitation.

The Society submits that policies such as ?Sentenced to a Job? may be undermined by the failure to include rehabilitation in the Bill. Australia?s international obligations under the ILO Convention No 29, ratified by Australia in 1960 may be breached where prisoners undertake involuntary, low paid labour within prisons or work in joint ventures with private enterprise unless the work has genuine rehabilitative value.^[5] By clearly stating rehabilitation in the objects of the Bill these concerns may be addressed.

Legal Representation

The Society is concerned with the use of the terminology of ?prisoner?s legal practitioner? (see s94).

Legal Practitioners will often seek to visit and speak to prisoners prior to receiving instructions to act ? and thus before they are in fact the prisoner?s legal practitioner. Conversations both verbal and written could be had with a view to determining whether the practitioner will act or provide legal advice and assistance. This definition is important as it regulates not only legal visits but also legal professional privilege.

We recommend an amendment that extends these provisions to include a legal practitioner acting in that capacity.

The Society notes that Legal Practitioners are regulated under the Legal Profession Act 2006 and the use of the term Legal Practitioner denotes someone regulated under that Act, with duties to the Court and to their client and to uphold the administration of justice. The Society has not in received any complaints regarding the conduct of Legal Practitioners who have cause to visit prison facilities.

The Society is thus concerned about the heavy handed requirements or screening and refusal of entry to Legal Practitioners. It is not the Society?s submission that a Legal Practitioner is entitled to see a client when it is unreasonable or would be unsafe to do so, nor that Legal Practitioners who behave illegally or improperly are by virtue of their status immune from sanction. As previously submitted the Society is of the view that this is a significant fetter on access to legal representation and has significant potential to needlessly diminish rights of persons in correction facilities. The Bill amends the provision in the current legislation to impose additional requirement that Legal Practitioner?s visits must by appointment and the Society is concerned about the proposal regarding the power of the General Manager to refuse such visits. The Society has not been informed of any incident that has occurred that would warrant such amendment and opposes the amendment in its entirety. If it was established that Legal Practitioners were in fact using their special status to commit illegal or improper acts this ought be notified to appropriate authorities including the Society.

The Society is concerned with how the ?approval? process will operate and what would guide the decision making. The Society is of the view that inserting a requirement that ?such approval would not unreasonably be withheld? together with reinstating clear objects of the Act would be a guide to the decision maker and any proposed procedure to be adopted and would ensure this process provided the requisite access to legal representation.

The Society applauds the acknowledgement in the Bill that a Legal Practitioner may be accompanied by an interpreter or other assistant. The Legal Practitioner has a duty to the Court and to the client to ensure that the nature of the proceedings and any legal advice are understood.

Legal Professional Privilege

The Bill although amended from previous versions, still purports to interfere with legal professional privilege without any reasoned basis and to the detriment of the rule of law. Legal Professional Privilege facilitates the rule of law and is a ?practical guarantee of fundamental, constitutional or human rights?[6]. A corrections system that arbitrarily seeks to erode that privilege in effect erodes the rule of law, placing the corrections system at odds with the system of laws it purports to uphold.

The current version of the Bill while appearing to be similar to the current legislative provisions still allows the General Manager to override the opinion of the nominated examiner and inspect mail that was found to be a legal item if the General Manager reasonably believes that the legal item is a prohibited item (s155(4),(5)).

The Society recommends that s.51 (3) of the current Act be included in the Bill. Section 51(3) allows for a complaint of misconduct against a legal practitioner to be made to the Attorney-General or the Law Society. The Society has not received any such complaint since the introduction of the provisions in 2000.

The Society wholeheartedly rejects the proposal that a General Manager may intercept privilege mail in the fashion proposed. The Society submits that the current provisions satisfactorily balance the safety and security of the prison against the confidentiality communications with one?s legal representative, a cornerstone of our justice system. No evidence or rationale has been put forward that would warrant the proposal contained in the Bill.

The Society also suggests that where a prisoner is in receipt of priority mail and a search of a prisoner?s cell is to be undertaken, that it be undertaken in the presence of that prisoner. This is to ensure legal professional privilege is not inadvertently breached.

Medical Care

The Society reiterates it concerns outlined in its initial submissions:

The Society is concerned regarding provisions where the General Manager is able to override the recommendations of health professionals... 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.

We further submit that these provisions of the current Bill do not accord with the Australian Medical Associations position statement regarding medical ethics in custodial settings[7].

The Society is also concerned regarding the proposal that the General Manager of a prison has access to inmates? ?current health information?. Whilst we acknowledge this is a significant improvement from the earlier Bill the Society would considers that a report by a health professional with access to the health record would provide adequate information to ensure the safe and secure incarceration and that appropriate medical treatment is provided.

The Society submits that 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.

The Society is also concerned with the removal of s.80 of the current legislation. Section 80 requires the Director to notify the prison?s next of kin, close relative, legal representative or other such person as the requested by the prisoner to be notified, when the prisoner is seriously injured or dies.

Food, clothing, exercise

The current Act provides that the Director must provide a prisoner with food and water of a sufficient quality and quantity to maintain the good health of the prisoner and that the Director must allow a prisoner to exercise.[8] The Society reiterates it concerns that the Bill does not articulate that food, clothing or exercise will be provided. This is in stark contrast to other Australian jurisdictions. The Society submits that these provisions should be reenacted into the Bill.

Money

Section 161(b) of the Bill provides that the Commission may charge a prisoner a fee for providing a service or a thing to the prisoner. The Bill in effect creates a system of user pays. The Society is concerned because the power to appropriate prisoners? money is without limit. The limitless nature of these provisions allows for the creation of an indentured labor force. The Society urges clear articulation and a limit on what can be taken from prisoner?s income over what period of time and how that will be accounted for with adequate measures to prevent abuse and strike the correct balance. The Society is of the view that as the Bill proposes a ?user pays? system therefore what will be provided by the system must be carefully articulated and transparent.

The Society urges the expansion of this provision to provide some limitation on what can be charged for to avoid a prisoner leaving prison with a negative trust account balance. Even though this debit will be written off, it is not consistent with the Ministers statement of prisoners having possibly tens of thousands of dollars available to them, the day they leave prison[9].

Standard Guideline 4.4 provides ?All sentenced prisoners should be expected to work, subject to their physical and mental capacity, but the maximum number of hours of work for prisoners should be prescribed in legislation or rules?. The Society recommends the hours of work be prescribed in the legislation. Whilst the Society supports the intent of ?Sentenced to a Job? and the rehabilitative effect of productive activity there is potential to create a two tier system for those inmates capable of earning and those that are not and adequate safeguards need to be put in place.

Further, there is nothing in the Bill that indicates those prisoners working under the ?sentenced to a job program? will indeed be paid award wages. The only reference to wages in the current Bill is in s.55 which allows the Commissioner to fix the rates of pay. The Society is concerned that these provisions do not adequately balance the ethical issues arising from prison labour.

The core questions of coercion, imposition of penalties and withdrawal of privileges assume an entirely different significance in situations in which people are deprived of their liberty by virtue of their imprisonment. Some of the most difficult policy and ethical issues deal with work performed by prisoners, since not all of it is prohibited forced labour.[10]

Visits and repatriation

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

Official Visitor

The Society recommends that the reports of the Official Visitors be published to allow for Parliamentary oversight.

Interpreters

The Society is strongly of the view that any modern corrections regime should mandate the use of trained or qualified interpreters throughout the facility. This includes during misconduct proceeding. The Society strongly recommends including a requirement for the assessment and provision of interpreters where required.

Misconduct Proceedings

The Society shares concern regarding the current misconduct proceedings process. The Society supports the proposal to introduce video recording of these proceedings and encourages steps to improve transparency and accountability.

Biometric Data and Privacy

The Society considers the use of biometric devices as a significant intrusion on the privacy of our members who visit prison as part of their role in representing clients and as Officers of the Court. The Society understands that Corrections need to ensure that the person, who enters, is the same person who leaves, however we consider there are significant risks that hackers or others could steal and disclose their personal details and use that information for malicious or other inappropriate purposes. This concern is not unfounded.

The Society is concerned with the protection of any personal data that is collected and stored and we urge the Department to develop, implement and publish a privacy policy regarding biometrics in prison. The Society seeks a copy of this policy prior to the commencement.

The Society also considers that it would be appropriate that all personal details and biometric information regarding a person on remand be destroyed upon a finding of not guilty.

Drug and Alcohol Testing

The Society submits that reference be made to the Traffic Act (as with the current Act) to ensure the use and calibration of testing equipment is standarised. This is particularly important if the results are intended to be used in proceeding against the person (whether for misconduct or a breach of another Act (s.150 of the Bill)).

The Society also seeks clarity in relation to s.145 (2) of the Bill relating to the presence of alcohol in a person?s system and the right for the General Manger to terminate that person?s visit. The Society is concerned about the intended purpose of this testing and the appropriateness in relation to Legal Practitioners visiting clients.

The Society looks forward to working the Department to ensure its legislation supports the intent of creating a first class corrections system.