LEGAL VISITS AT PARKLEA PRISON

I am a prisoner in NSW and I am currently held in Parklea Prison. I am concerned about what is going on in NSW prisons and this is my story.

On 19 January 2005, my solicitor, Ms Shiranioa George came out to Parklea prison to see me on a legal visit. Now, my case is finished...

I'm sentenced and lost on appeal at the Supreme Court, but I have some other legal issues that have to be dealt with. Such as I'm working on an appeal to the High Court, my assets, and some issues in relation to my brother's legal matters. All of which are true, and I cannot talk about those issues to anyone because it is privileged information protected by lawyer/client confidentiality.

On that afternoon, approx 2.30 pm officer Jim Woods [Area Manager] - used to be head of intelligence in 2001-02 (but I think he's been demoted) anyway he canceled my legal visit which he had no right to do.

I spoke with my solicitor the next day on the phone and she told me that Jim Woods accused her of sneaking inside Unit 3 compound. Unit 3 is for protection, which is separate to the Unit 2, which is the main area.

Ms George wanted to see me because Ms George and I are very close friends and have been for years. It is my understanding that there are no laws in seeing an inmate even if they're both friends. And she didn't sneak in to Unit 3 compound; she followed procedure by filling out the paperwork upon entering the prison.

We also had this problem in 2001, when my lawyer made a contact visit. A big deal was made, and officer Woods complained about it. Ms George was given a choice to either see me on a legal visit or contact visits but not both. So she chose to utilise the legal visit and has not been on a contact visit with me since.

Officer Woods has no right to cancel my legal visit with my solicitor as I'm entitled to it and I believe it is my right and I'm sick of his prejudice accusations.

My lawyer has filed a complaint against Woods and I'm waiting to see the Area Manager who is in charge of Unit 3 to discuss the problem. I'm classified to Parklea and don't want to move jails.

I'm hoping that my talking it out would solve the problem. I'll let you know the outcome.

By Will Irani 21 February 05

Ed: The Commissioner of Corrective Services has very wide discretionary powers for the 'Good Order and Security of the Prisons'.

You should also complain to the Ombudsman and see what they say about it so the complaint is acknowledged - for the record.

But we have opposed many decisions made by the Commissioner and have complained to the Ombudsman, but they say they cannot make the Commissioner change his discretionary decisions or even compel him to show any proof why a decision was made.

Please note the clause under 'Relevant administrative law principles' particularly,

"Exercising a discretion in a way that is so unreasonable that no reasonable person would have exercised the power in that way."

Now ask yourself, is Ron Woodham a reasonable person? Well according to his curriculum vitae he's not! And if you can't beat that you're done with the authorities, especially if the Commissioner and his 'cronies' don't like your head.

The other option would perhaps be a legal one so you may need to arrange a legal visit with your solicitor? But regrettably that may just start the whole exercise off again - in an endless loop......

But then again it is my understanding that a prison is not a normal environment and once you're there, you're disabled, even if you were disabled when you were sent there.

And, it is also my 'experience' that the only 'rights' you really have in prison, is from the powers that be.

Attached for your perusal 'Public Sector Agencies fact sheet No 4 NSW Ombudsman'-

Discretionary Powers.

Let us know how you get on we could even make this into a serial segment.

What about?

HERE WE GO ROUND THE CORRUPTIVE SERVICES BUSH....

EVERY BEST WISH

Related:

fact sheet No 4 Discretionary Powers

What are discretionary powers?

Discretionary powers are permissive, not mandatory. They are powers granted either under statute or delegation which do not impose a duty on the decision-maker to exercise them or to exercise them in a particular way. Within certain constraints, decision-makers are able to choose whether and/or how to exercise discretionary powers.

How must they be exercised?

No public official has an unfettered discretionary power. Public officials must exercise discretionary powers in accordance with any applicable legal requirements, reasonably, impartially and avoiding oppression or unnecessary injury.

Agencies should adopt policies and procedures which set out the general approach to be followed in at least each major area of activity for which they are responsible. This should ensure that the agency's powers are exercised consistently from case to case, unless the merits of any particular case justify a different approach.

Relevant administrative law principles

In exercising discretionary powers, various principles of administrative law require public officials to:

* use discretionary powers in good faith and for a proper purpose (ie, honestly and only within the scope of and for the purpose for which the power was given)
* base their decision on logically probative material (ie, logical reasons, information that proves the issues in question, relevant and reliable evidence)
* consider only relevant considerations and not consider irrelevant considerations
* give adequate weight to a matter of great importance but not give excessive weight to a relevant factor of no great importance
* exercise their discretion independently and not act under the dictation or at the behest of any third person or body
* give proper, genuine and realistic consideration to the merits of the particular case, and not apply policy inflexibly, and
* observe the basic rules of procedural fairness (ie, natural justice).

Other principles of administrative law preclude public officials from:

* making decisions in matters in which they have an actual or reasonably perceived conflict of interests
* improperly fettering their own discretion (or that of future decision-makers) by, for example, adopting a policy that prescribes decision-making in certain circumstances
* exercising a discretion in a way that is so unreasonable that no reasonable person would have exercised the power in that way
* exercising a discretionary power in such a way that the result is uncertain
* acting in a way that is biased or conveys a reasonable perception of bias
* making decisions that are arbitrary, vague or fanciful
* refusing to exercise a discretionary power in circumstances where the decision-maker is under a duty to do so, or
* unreasonably delaying the making of a decision that the decision-maker is under a duty to make.

It is a serious matter for public officials to ignore valid advice or valid considerations, particularly for the purposes of avoiding discomfort or embarrassment on the part of the government, agency or decision-maker.

Policies and practices to guide the exercise of discretionary power

Not every situation demands a policy, and policies are not a panacea capable of properly addressing all circumstances. However, policies are an important means of guiding decision-makers in exercising discretionary powers appropriately, consistently and fairly.

Policies should include an objective and the criteria to be used in decision-making to help ensure that:

* all relevant legal requirements are complied with
* all relevant factors are considered
* there is consistency in decision-making, and
* the decision-making process is transparent and accountable.

As a matter of principle, it is unacceptable for an agency to adopt and implement a policy that adversely affects, or could adversely affect, the rights or interests of any member of the public where the existence or content of the policy is kept secret or the policy document is not available for inspection and purchase on request.

Policies adopted by agencies should be communicated to relevant staff and members of the public. In this regard, s.15 of the Freedom of Information Act requires that agencies must ensure each of their policy documents are available for inspection and purchase by members of the public.

Government circulars, memoranda and codes of practice

There is usually no legally enforceable obligation to comply with government circulars, memoranda and relevant industry or generally accepted codes of practice. However in the interests of fairness, equity and consistency, decision-makers should have regard to them and comply with their terms unless there are justifiable, and preferably documented, reasons for taking another course of action.

Implementing policies and procedures consistently

Policies should not be applied rigidly without proper consideration of the particular circumstances and merits of each individual case.

There will be occasions where there are justifiable grounds for not following policies, practices, codes or guidelines. Where an agency, with good and preferably documented reason, departs from a consistent application of a policy, this does not create a precedent which binds the agency.

Such decisions are relevant and important considerations, but are not binding. Conversely, where an agency frequently departs from or ignores a policy, the policy would seem to have little weight or relevance and would need review.

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US district judge Colleen Kollar-Kotelly rejected the Government's proposal for audio and video monitoring and for a review of notes taken at the meeting because it would undermine the attorney-client relationship.

"The court is acutely aware of the delicate balance that must be struck when weighing the importance of national security against the rights of the individual," she said in the 25-page ruling.

[National security? Pre-emptive strikes on Sovereign Nation States? Subsequent occupation, genocide, maiming and torture? How is that US national security?]

"However, the Government has supplied only the most slender legal support for its argument, which cannot withstand the weight of the authority surrounding the importance of the attorney-client privilege," she concluded.

More than 500 people are being held at the Guantanamo prison, including Australians David Hicks and Mamdouh Habib, detained during the 1991 invasion of Afghanistan and in other operations in the US and the Coalition of the Killing's resource war's in the Middle East.

The three prisoners in this case are Mohammed Ahmed al Kandari, Fawzi Khalid Abdullah Fahad al Odah and Khalid Abdullah Mishal al Mutairi. They were among 12 Kuwaitis who sued in 2002 seeking to be told of the charges against them, to be allowed to meet with their attorneys and families and to have access to the courts. Their case and another one reached the US Supreme Court and the justices in June ruled that foreign prisoners at the base can go to US courts to pursue their claims.

Ms Kollar-Kotelly ruled the three detainees, [prisoners], were entitled to legal representation. The Government took the position that while the detainees, [prisoners], could meet with their attorneys under the proposed restrictions they had no constitutional or legal right to representation.

"It is simply impossible to expect petitioners to grapple with the complexities of a foreign legal system and present their claims to this court without legal representation," she said.

The Supreme Court ruled the prisoners have the right to bring their claims before the court, and she said they cannot be expected to exercise this right without the assistance of counsel. The Government's proposed review, meant to check for any disclosure of classified information, would cover all written materials brought into or out of the meetings and any legal mail sent between the attorneys and the detainees, [prisoners.]

"The Government is not entitled to unilaterally impose procedures that abrogate the attorney-client relationship and its concomitant attorney-client privilege covering communications between them," Ms Kollar-Kotelly said.

The judge came up with her own plan to allow the attorneys to meet with the detainees, [prisoners], without being monitored.

She said one attorney would meet with one detainee, [prisoner.] The information would be treated as confidential under attorney-client privilege, and would not be disclosed to anyone. If the attorney wanted to disclose the information, the lawyer then would have to go through the government's proposed classification review, Ms Kollar-Kotely said.

She said the attorney would be required to disclose to the government any information from the detainee, [prisoner], involving future threats to national security.

[Future threats to the Coalition of the Killing's resource war's in the Middle East.]

By Just Us 21 October 04

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