The Classification and Movement of Prisoners Report Office of the Queensland Ombudsman

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1 The Classification and Movement of Prisoners Report Office of the Queensland Ombudsman Introduction In 1983 prisoners at Boggo Road gaol took a torch to the place and rioted. A court was set up inside the prison to prosecute those involved in front of two justices for offences under the Prisons Act. For my sins I spent 6 months imprisonment conducting many of those prosecutions. The prisoners rioted because of the conditions under which they were being held, the absence of anything to do, the lack of rehabilitation, the poor food, and the brutality regularly meted out to them. They said that when they were being led away after the riots they had to run the gauntlet, that is, prison officers lined up in two lines and belted prisoners with truncheons as they passed between them. As a naïve young prosecutor I doubted whether that had happened. Officers of course denied it. I returned to Boggo Road in 1988 as a lawyer with the Fitzgerald Inquiry. The Inquiry was in full swing and the subject of immense public interest. I recall on one occasion interviewing a notorious drug trafficker about police corruption. We were seated at the desk of an officer (as I was instructed to do). The officer returned and demanded his desk back telling me to f### off. I was a lawyer with the most powerful anti corruption inquiry this country had ever known, however, he was sufficiently comfortable in his own pond to behave in this way. Imagine how he treated prisoners. When I returned to prisons in 2005 as Chief Inspector of Prisons, I found places which were unrecognisable from the Boggo Road I had witnessed in the 80s. Like the police, Corrections has come a long way in the last 20 years. Report But I did not come here to reminisce. 1

2 The purpose of my paper is to talk to you about the Ombudsman s report on the classification and movement of prisoners and its relevance to corruption in Corrections. Background The report is not about the conditions under which prisoners are held or transported. Rather it is about the processes used by Queensland Corrective Services (QCS) for the security classification, placement and transfer of prisoners. The report arose in part because of a complaint which we received from a long term prisoner. The prisoner was moved from Prison A to Prison B (higher security) for alleged breaches of discipline. No charges were ever laid. The Centre s Offender Management Team (OMT) recommended that the prisoner be returned to Prison A. The QCS Delegate did not follow that recommendation but decided the prisoner should stay at Prison B on a low classification. The Delegate failed to record any reasons for the placement decision or provide the prisoner with any reasons. The Ombudsman recommended that: reasons should have been given for the security classification decision where the placement decision does not follow the OMT recommendation and the prisoner s preference, reasons should be given to the prisoner. QCS agreed. 2

3 Subsequently, the same Delegate conducted another assessment of the prisoner. Once again the OMT recommended that the prisoner return to Prison A. Once again the Delegate decided not to follow the recommendation: the prisoner was to stay at Prison B on a low classification. Once again the Delegate failed to record any reasons for the placement decision or provide the prisoner with any reasons. Indeed the Delegate used exactly the same words he had used in the previous decision as follows: The delegate then gave consideration to the offender s placement. In determining the placement of the offender the authorised delegate consulted with members of the Offender Progression Review Committee and exercised the discretion delegated in accordance with Section 68 of the Corrective Services Act. The offender is approved to remain placed at [Prison B] So what? I will pause here to ask a few questions which some of you may be asking, along these lines: so what? Why should prisoners be given reasons for their security classification, transfers and placement? Haven t they forfeited their rights? Rather than answer those questions myself, I would prefer to go to the observations of some eminent jurists. The Honourable Justice Chaskalson, a leading human rights lawyer and former member of the South African Constitutional Court, in delivering the inaugural Tony Fitzgerald lecture the other night said this: How then should the law of a democratic country guard against the abuse of power and corruption, hold government accountable for its actions or lack of action, protect those who are vulnerable, and ensure that everyone s fundamental rights are respected and upheld? For a long time, common law courts depended on the doctrine of legality, an incident of the rule of law, to hold governments to account. Public authorities were obliged to perform their 3

4 functions in accordance with the law, and could be held to account by the courts if they failed to do so. Holding public authorities to account through the courts was, however, constrained by various factors. By the content of laws they were bound to enforce, by the absence of any requirement that reasons be given by the public authorities for their decisions, by the inability of the public to gain access to information in the possession of the government, by strict rules of standing and by the deference shown by courts to the executive. This is alluded to in the Fitzgerald report, which called for statutory provision to be made for access to information, for existing complicated judicial remedies to be simplified, for the broadening of the rights of individuals to bring applications for administrative review, for interested parties to be given the right to obtain reasons for the decisions affecting them, and for a system of review of the merits of the decision by an independent review body. The section of the Fitzgerald report to which His Honour referred is as follows: The Judiciary are empowered to protect an individual from the abuse of governmental powers by ensuring that those powers are kept within the legal bounds imposed by Parliament, and their exercise constrained by accepted principles of natural justice. The legality of decisions of individual Ministers and other boards and tribunals may all be challenged in the courts on such grounds as bad faith or improper purpose, or on the ground that the decision was made as a result of irrelevant considerations, impermissible external influences or lack of procedural fairness. Any potential litigation may be hamstrung by its inability to discover the basis, the reasons or even the fact of a decision. In the absence of any legislation giving individuals an enforceable right to obtain reasons and to see unpublished Government documents, including documents about themselves, these documents remain secret. These deficiencies in systems for review of administrative action have been tackled in other common law jurisdictions by the adoption of a general system of administrative review. There is wide agreement that this system has improved the quality of decision-making in those jurisdictions. A similar system could be adopted in this State under which: the existing complicated judicial remedies are replaced by simple machinery for the making of applications for judicial review, and an array of statutorily based remedial powers; the rights of an individual to bring an application are broadened; there is a right to obtain reasons for a decision, subject only to limited exceptions; and decisions are reviewed on their merits by an external independent review body. 4

5 In Queensland, the Judicial Review Act was enacted in 1991 to give effect to some of Fitzgerald s recommendations. However, over time, various amendments have eroded one s ability to apply for judicial review. The right to apply for judicial review of decisions about security classifications and transfers is one of them. It was removed by an amendment to the Corrective Services Act in What we are left with then is the risk of abuse to which His Honour referred. This is particularly so because of as The Chief Justice said in his Keynote address yesterday the powerful tensions in Correctional Centres. So why should we care about a criminal minority in our society? To answer that question I must again return to Justice Chaskalson s words. In the following extract he, and the judgement from which he quotes, refers to the oversight role of the courts but the principles are no less relevant. He said: Minorities shift depending on the issues at stake, and electoral politics - although a check on the way power is used - do not ensure that the right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights will not be infringed by the legislature. This has been emphasized by the South African Constitutional Court, which has said: The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected. 1 I think these observations more than adequately answer the so what question. 1 S v Makwanyane 1995 (3) SA 391 (CC), Para 88 5

6 In summary the absence of transparent practices, especially in a closed correctional environment, may lead to arbitrary, unfair decisions, abuse of power and corrupt practices. Because the right to apply for judicial review of decisions about security classifications and transfers was removed in 2006, the Ombudsman is the only independent body external to QCS which is able to review such decisions. In addition, I should add the following. Fundamentally this is about the manner in which a citizen is contained, and moved around the State, by the State The management of prisoners is a matter of considerable public interest The Delegate was an experienced senior officer which suggested other officers may be following the same practice Despite the Ombudsman s formal opinion of maladministration the delegate failed to record or give reasons when reviewing the decision. Administrative review For the above reasons, we conducted a performance audit of QCS. We restricted the audit to prisoners serving 10 years or more. In doing so we reviewed 200 files (25%) for the period 1 July 2006 to 30 June We looked at the Integrated Offender Management System as well as hard copy files at Women s CC, Wolston CC, and Woodford CC. Results of review There was significant evidence of non compliance with official policies and one of the department's obligations under the Corrective Services Act. In 30% of cases officers failed to record adequate reasons for their decisions. 6

7 There were many cases of prisoners not being given a notice containing reasons in respect of security classification decisions as required by the Act. In other cases, inadequate reasons for transfers were provided so that prisoners could not make a meaningful request for review. Case studies Some examples: Case study 1 The delegate gave the following factors and reasons for a security classification and placement decision: With regard to factors at Sections 12, 13, 19 and 68 of the Corrective Services Act 2006, suitably classified High and placed at [centre] Case study 2 In determining offender Blank s placement, notice was taken of the relevant legislation, procedure and escape risk together with all aspects of the offender's case, information contained within the document and the comments of the sentence management team. Following the determination of the offender's classification, I then gave consideration to the offender's placement in accordance with s.68(1)(a) of the Corrective Services Act 2006 and decided that offender Blank is appropriately accommodated at XX Correctional Centre. It will be noted that the Delegate simply recorded the things he took notice of but not how those things influenced his decision. Case study 3 The Delegate, in rejecting the OMT s placement recommendation, stated: 7

8 The delegate, [name] gave consideration to the offender s placement on [date]. In determining the placement of the offender the authorised delegate exercised the discretion delegated in accordance with Section 68 of the Corrective Services Act The offender is appropriately accommodated at [centre]. The Delegate did not turn his mind to the factors he recorded as part of his placement decision (the same words were used for accepting an OMT recommendation). Ombudsman s Opinions In the Ombudsman s opinion QCS had failed to: comply with the obligation in the Corrective Services Act to give prisoners adequate reasons for decisions about security classifications record and/or provide adequate reasons for placement decisions advise prisoners of their right under the Act to request in writing that the chief executive reconsider a transfer decision. Recommendations The Ombudsman made 15 recommendations to improve QCS practices and procedures, in particular, the giving, and recording, of reasons for decisions. The Director-General of the Department of Community Safety, who is also responsible for QCS, has agreed to implement 14 of the recommendations and the substance of the remaining recommendation. We expect that through the implementation of these recommendations there will be greater accountability and transparency in this area, thereby contributing to the prevention of corruption in the custodial environment. Forbes Smith Deputy Ombudsman Office of the Queensland Ombudsman 30 July