As NSW Attorney General Bob Debus noted in 1996: "The kinds of complaints which occur in the system may seem trivial to outsiders but in the superheated world of the prison, such issues can produce explosive results."NSW: The Sydney Morning Herald also reported:
"The appointment [of an I-G] reflects dissatisfaction within the Government, based on its experience of the prison system in Opposition, concerning the rising number of complaints about the system to the Ombudsman, reports showing increased violence in jails and dissatisfaction with the monitoring of operations at the State's only privately run prison in Junee.
Government sources confirmed yesterday that the appointment would go ahead despite unease within the Department of Corrective Services about the new layer of accountability that the appointment of the inspector-general will force on the department."
...and Peter Breen MP in 2003 added:
"Some issues of prisoners seem trivial by our standards - we often wonder how they can develop and blow up to such an extent that they cause confrontations, and often assaults and serious injuries. A couple of areas cause problems for prisoners.
It is worth noting them in the context of this debate because, in my experience - which is only limited - the I-G has been able to deal with these issues in a way that I believe the Ombudsman has been unable to.
I refer to [Official] visitors - a matter of great concern to prisoners - and to what prisoners term 'buy-ups'...I do not believe the Ombudsman has the same status and rapport with prisoners, with those who represent their interests or with community groups as the I-G."
And regarding Official Visitors during the same debate, John Ryan (Labor) put it in Parliament:
"The value of official visitors is that they have been independent of the department and have been seen as an external agency able to make contact with inmates. Their role would be destroyed if they were to become the responsibility of the directorate...there is no requirement for the Directorate to report to Parliament, and thereby to the public, and its reports remain a closed shop. No one would ever know what was in them or whether they were implemented."
UTS: COMMUNITY LAW CENTRE
The abolition of the Office of the Inspector General of Prisons: Legal Briefing Paper
Acknowledgements
This report was prepared by: Julia Beehag, Adam Fletcher, Violey Foulis, Krishni Goonesna, Lynda Maitland and Vicki Sentas
This report was coordinated by Louise Buchanan between March and August 2004 and by Krishni Goonesena between September and December 2004.
Thanks to Justice Action for providing us with the brief for this paper, including providing the specific details of Ms Timbrell's case.
Special thanks to Simon Moran from the Public Interest Advocacy Centre (PIAC) for legal advice on the powers and obligations of the NSW Ombudsman.
1. Introduction
This briefing paper was prepared by volunteer law students at the UTS Community Law Centre to provide information for Justice Action on prisoner complaint handling in NSW. We will examine the impact of the abolition of the role of the Office of the Inspector General of Prisons and the transfer of some functions of that role to the NSW Ombudsman.
Initially we provide important background information to the report, which was initiated by a case where a person was denied visiting rights to a prisoner on the grounds of smuggling drugs into the prison. We have concerns about the lack of appeal against such decisions, and shall discuss the international law implications and possible affect on civil liberties.
We then detail the history of the Office of the Inspector General of Prisons (I-G), examine legislation, and identify which of the functions of that Office, were taken up by the NSW Ombudsman. We compare the effectiveness of the I-G to that of the Ombudsman in dealing with prisoner complaints by analysing statistics from annual reports.
We examine legal and policy issues arising from the abolition of the I-G and the challenges faced by the NSW Ombudsman's office in effectively handling prisoner complaints.
Finally we discuss the role and functions of Official Visitors and raise concerns about their independence.
2. Aims of this briefing paper
* To examine the roles of the NSW Ombudsman and the now expired Office of the I-G in relation to dealing with prisoner complaints.
* To conduct a comparative analysis of both the legislation and the practice of the I-G and the Ombudsman, highlighting the strengths and weakness of both models.
* To consider the role of Official Visitors during the existence of the I-G and currently.
* To raise questions and areas that could be the subject of future research.
* To make recommendations for improvements in dealing with prisoner complaints
3. Methodology
There were various research strategies undertaken in preparing this paper:
* We undertook detailed comparative analysis of legislation, regulations and annual reports.
* We made contact with the NSW Ombudsman's office to obtain information about how the new Corrections unit for prisoner complaint handling works in practice.
* We researched the NSW Parliamentary website and Hansard papers.
* We analysed material provided by Justice Action on the Timbrell case and the Dalton Avery review.
* We conducted research of various journal articles on the role of NSW Ombudsman and the prison system.
[Questions: Is it possible or relevant to consider interviewing prisoners to determine their satisfaction with the NSW Ombudsman's complaint handling procedures?]
4. Background
This investigation into the consequences of the abolition of the Office of the NSW Inspector-General of Prisons (I-G) was prompted by the matter of Josephine Timbrell.
Ms Timbrell made a complaint to Justice Action after the Department of Corrective Services (DCS) accused her of bringing 5.1 grams of green vegetable matter into Goulburn Gaol.
This was based on evidence allegedly comprising a cell search and the testimony of the person she visited, Mr Russell Dinan, her fiance.
Mr Dinan denies ever having given such a testimony, and despite the DCS claiming the video was given to the police to investigate further, the Police, when contacted, could not confirm this.
In February 2003 Ms Timbrell was notified by DCS of the ban, effective until 2005, and through Justice Action she complained to the NSW Ombudsman and to the I-G. Ms Trimbrell wanted her rights restored so she can take her young sons to visit his father, at Mannus Correctional Centre, before 2005. We note that both the Ombudsman's Office and the I-G advised her that they could not assist her as she had not exhausted the DCS' internal appeals process.
Ms Timbrell decided that trying to traverse the DCS internal appeals process yet again, after receiving conflicting information from DCS and the Police, as an impossible task. Ms Timbrell's relationship with her fiance has now ended due to the mistrust caused by the allegations that he had made a statement against her. Due to the continuing visitor ban, Ms Timbrell's sons have not seen their father since December 2002 .
4.1 Visitor Bans Generally
The correspondence between Justice Action and the NSW Ombudsman's office highlights some issues that are important, and which require further investigation. For example, the NSW Ombudsman stated that:
"Citizens have no actual rights to visit inmates in correctional centers under the law. It is a privilege granted by individual Governors and the Commissioner whose primary responsibility is to maintain the security and good order of correctional centres.
The Crimes (Administration of Sentences) Act gives Corrective Services staff the power and discretion to restrict or refuse visiting privileges where there are reasonable grounds for believing that the security and good order of correctional centres might be jeopardized by allowing further visits to proceed.
Such decisions are discretionary decisions. The law does not require them to prove any offences before imposing a ban. They only have to form a reasonable opinion that it is necessary"
While the power to restrict or refuse visitor bans is given, in fact, there is no mention in the Crimes (Administration of Sentences) Act 1999 of outright visitor bans. In the Crimes (Administration of Sentences) Regulations 2001, Division 5 deals with General restrictions on Persons who may visit.
Section 103 and 105 state that the Governor or Commissioner may bar persons from visiting prisons if they are of the opinion that the visit would prejudice the good order and security of the prison.
This would appear to be highly discretionary and limit any right of appeal to, or review by, an administrative judicial body. In only requiring the DCS to form an 'opinion' to prove offences, it also appears to limit any right to natural justice.
4.2 Australia's International Obligations
It is possible that the
discretionary decisions of the DCS regarding visitation bans could be in contravention of Australia's international obligations under at least two ratified treaties.International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights was ratified in Australia on 13 November 1980. Article 10 states that:
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. It is therefore possible to argue that not allowing Ms Timbrell's son to see his father is not treating him with humanity and respect and would not promote his reformation and social rehabilitation.
The International Covenant on Civil and Political Rights is currently under review by the United Nations.
Convention on the Rights of the Child
The Convention on the Rights of the Child was ratified in Australia on 16 January 1991. Article 3 states that;
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Article 7 states that:
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
It would appear that DCS did not have Ms Timbrell's son's best interests in mind when enforcing the visitor ban, and not being able to visit his father would severely impact on his right to know his father.
[Question: Is there information available on possible breaches of Australia's international obligations in relation to visitor bans?]
7.4 Complaints made through Justice Action
Justice Action has received numerous complaints from inmates at the High Risk Management Unit (HRMU) at Goulburn about general conditions affecting inmate health, such as lack of natural light and ventilation. Inmates requested Justice Action act on their behalf in making complaints about these conditions.
To do this, direct authorities were required from the prisoners as the Ombudsman had determined that it 'was not necessary to pursue enquiries on the basis of a complaint from a third party, such as Justice Action" . Correspondence to the prisoners containing the authorities was never received. A written complaint was then made by Justice Action on the 19th December 2003.
Correspondence detailing the outcome of inquiries was not received from the Ombudsman's Office until 21st June 2004, six months later. This issue had still not been finalised as the Commissioner of Corrective Services had "yet to articulate the grounds for his forming the opinion that receipt of the letters was likely to prejudice the good order and security of the correctional centre" .
It was only on the 25th November 2004 that the NSW Ombudsman could write to Justice Action to inform them of the Commissioner's views, a full eleven months after the initial complaint was made.
By the NSW Ombudsman taking an inordinately long period of time to investigate this complaint about authorizations from prisoners, the real issue about conditions at the prison affecting inmate health has been ignored, or at best, sidelined.
Conclusion:
Whilst the Ombudsman's office has had an increase in staffing levels, it appears that this has not translated into a decrease in the time taken to finalise complaints, and in fact, is markedly worse than the complaint finalisation horizon under the I-G.
It is disturbing that such few complaints are formally investigated by the Ombudsman compared to those of the IG, while an increase in funding to the Ombudsman's Office would provide extra staff and improve complaint resolution time. Unfortunately there is no publicly available information on funding given to the Office of the IG or what extra funding has been received by the Ombudsman's office since the expiry of the Office of the I-G.
There is a lack of accountability from DCS in not being required to implement any recommendations of the Ombudsman's office. Also the role of the Ombudsman is too restrictive in not being able to review prisons.
Therefore we recommend that the Corrections team be reviewed after one year of processing prisoner complaints. The review should also include figures on how Official Visitors have contributed to complaint resolution, with the results being tabled in Parliament to determine if prisoner complaints are being appropriately addressed.
The Ombudsman has no similar power to the I-G to investigate or comment on Official Visitor reports (as outlined in page 11). This report should also detail the level and nature of the investigation and conciliation training that the Correctional Services team is given to enable them to handle prisoner complaints.
10. Recommendations
Recommendation 1:
1) That the Office of the I-G be re-instated the training of Official Visitors be undertaken by that Office; or
2) That Official Visitors be trained by the NSW Ombudsman; or
3) That Official Visitors be trained by an independent body.
Recommendation 2:
1) Reinstate of the Office of the I-G inclusive of all legislative provisions; or
2) Amend the Ombudsman Act 1974 (NSW) to include sections equivalent to 213(1)(e), 213(1)(f), 213(1)(g) and 213(1)(m) of the Crimes (Administration of Sentences) Act 1999 (NSW).
Recommendation 3:
1) Reinstate the I-G, or establish a new independent body, or empower an existing independent body to: -make recommendations to the Minister for Justice on ways in which procedure of the DCS can be improved, and -investigate and comment on reports of the Official Visitors and Community Advisory Councils, and -fully implement all of the functions that were covered by the Office of the I-G
Recommendation 4
1) Increase funding of the NSW Ombudsman to expand current staffing of the Corrections Team, to allow for increased investigation of complaints and decrease the time taken to finalise complaints; and
2) Conduct a review of the first year of the NSW Ombudsman's Corrections team, including figures on how Official Visitors have contributed to complaint resolution, with the results being tabled in Parliament to determine if prisoner complaints are being appropriately addressed. This report should also detail the level and nature of the investigation and conciliation training that the Correctional Services team is given to enable them to handle prisoner complaints.
Recommendation 5:
Re-instate Office of Inspector General or an equivalent including in its functions:
1) responsibility for reporting on Official Visitors; and
1) power to report directly to Parliament.
Recommendation 6
1) Legislation, regulations or publicly available policies and guidelines should provide a clear and definitive explanation
of the role and functions of Official Visitors.Recommendation 7:
1) Official Visitor training should be provided by an independent body and not by DCS.
Recommendation 8:
1)Official Visitors should report to the NSW Ombudsman or another independent body.
11. Conclusion
The Office of the Inspector General played an important role in providing not only an effective and timely prisoner complaint handling process, but also a review process that investigated prisons, made recommendations on procedure and oversaw training of, and reports made by, Official Visitors.
The legislative provisions governing the Office of the I-G under the Crimes (Administration of Sentences) Act 1999 remain intact yet are dormant due to the 'sunset' clause which expired the position of the I-G after 1st October 2003. Therefore in theory it would not be difficult to reinstate the Office of the I-G to allow effective complaint handling and prison oversight.
However the political reality of such a revival of the Office is unlikely given the political climate plus the financial cost of re-establishing a bureaucracy that has been so recently dismantled. On this basis, we have made recommendations that are mutually exclusive of that outcome. For example, training of Official Visitors may be carried out by the NSW Ombudsman or another body independent of the DCS. The review functions performed by the I-G could now be legislatively provided for in the Ombudsman Act 1974 or by a new or existing independent body.
With the expiry of the Office of the I-G, most functions performed by that Office have now been assigned in full to the NSW Ombudsman. The Ombudsman has since established a Corrections Unit of five staff that is responsible for handling prisoner complaints. Information should be made publicly available on how much of the I-G budget has been transferred to the Ombudsman and why complaint finalisation times have increased by over two and a half times under the Ombudsman. At the very least, there should be a review conducted of this new team's first year performance that includes information on the training provided to staff in complaints investigation and finalisation as well as how Official Visitors have contributed to complaint resolution.
Official Visitors have been a part of the prison management system in NSW for a very long time. Even so, there is very little publicly available information on the role and functions of Official Visitors. We submit that this information should be detailed in regulations, policies or guidelines. The independence of Official Visitors was assured when they were trained outside the DCS by the Office of the I-G, and it is of great concern that their training has reverted to the Executive Director, Probity and Performance Management, a division of DCS. This arrangement should cease, and training be undertaken by an independent body. Our recommendation is that Official Visitors report directly to the Ombudsman, thereby ensuring independence of the complaints handling.
Effective oversight of prisons is vital not just for maintaining prisoner rights but also for increasing public confidence in the prison system. A mechanism that provides an independent body, ideally the I-G, to report directly to Parliament on how prisons are being run and how procedures can be improved, without the need to defer to the DCS or the Ombudsman would provide this truly transparent and accountable process.
While this paper aims to answer questions about the abolition of the Office of the I-G, it also seeks to raise questions that could form the basis of further research & discussion.
by JusticeACTION Monday January 24, 2005
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