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Corrective Services and Other Legislation Amendment Bill 2008
Corrective Services and Other Legislation
Amendment Bill 2008
Explanatory Notes
Short Title of the Bill
Corrective Services and Other Legislation Amendment Bill 2008
Objectives of the Bill
The Bill will create a scheme:
· to ensure offenders are required to utilise existing complaint
mechanisms prior to making complaints to the Anti-Discrimination
Commission Queensland (ADCQ);
· modify how the Anti-discrimination Act 1991 applies to awards made
to offenders;
· modify how the Anti-discrimination Act 1991 applies to the
consideration of direct and indirect discrimination for corrective
services;
· provide a mechanism to freeze compensation and damages awards
made in favour of offenders and notify victims of crime so they are
given the opportunity to make a civil claim against the frozen funds;
and
· enable prescribed Queensland Corrective Services (QCS) Dog Squad
Officers to lawfully possess dangerous drugs for the purpose of
training drug detection dogs and to outline the manner in which drugs
possessed for such purposes must be managed.
Policy Rationale
Context
In respect of corrective services, the government is committed to providing
"community safety and crime prevention through an integrated correctional
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Corrective Services and Other Legislation Amendment Bill 2008
services system delivering humane containment, supervision and
intervention for prisoners". Effective management of prisoners requires
standardised practices to minimise the potential for security and safety
issues. However, as the population grows and becomes more diverse,
corrective services are faced with the challenge of meeting increasing and
varied needs.
The recent Supreme Court appeal decision of State of Queensland v
Mahommed [2007] QCS 018 addressed the issue of offender compensation
through the ADCQ. In its original ruling, the Anti-Discrimination Tribunal
Queensland (ADTQ) held that prisoner Mahommed was the victim of
direct and indirect discrimination under the Anti-Discrimination Act 1991.
This decision was upheld by the Supreme Court. This decision has
significant implications for the management of offenders within the
correctional environment and how requests from individuals for different
treatment are managed. An unintended consequence of the application of
the anti-discrimination laws in the realm of corrective services is that the
standards that have been established as a result of the Mahommed decision
cannot be met by government and in turn encourage unrealistic and
unreasonable expectations of prisoners.
In recent years, offenders have sent complaints about treatment directly to
the ADCQ rather than use an internal complaints process. A
comprehensive complaints management system for offenders was
introduced based on the Ombudsman's Development of Effective
Complaints Management Policy and the National Standard on Complaints
Handling.
In order to ensure that offenders use the new complaints management
system, it is proposed that a statutory duty should be placed on the ADCQ
to ensure that it only considers complaints from offenders who have made
reasonable use of all of the internal mechanisms available to them to
resolve their complaint.
Under the Criminal Offences Victims Act 1995 (COVA), victims who suffer
injury as a result of criminal conduct may receive compensation from an
offender or, if the offender cannot pay, the State Government. This
compensation differs from compensation that a victim may receive
following a claim against the offender in civil proceedings. Civil claims
may reflect damages that are not considered as part of a claim under COVA
such as property damage or loss of earnings, and victims may wish to make
a civil claim if an offender is in a position to pay such damages.
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Corrective Services and Other Legislation Amendment Bill 2008
In many cases offenders are unable to pay any damages resulting from a
civil claim at the time of conviction. If, however an offender receives
compensation as a result of an incident that occurs in prison, a civil claim
may then be viable. It is important that the victim is made aware of the
offender's new circumstances. It is also important to ensure that victims are
not disqualified from making a claim because the limitation period has
expired.
New South Wales and New Zealand have introduced measures to ensure
that, where a prisoner has been awarded compensation, any money is
frozen for a period of time to ensure that victims are made aware of this and
are provided with an opportunity to make a civil claim. Queensland is
following the general approach adopted by these jurisdictions.
Achievement of the Objectives
The amendments will make it mandatory for an offender to use all available
internal complaints mechanism before taking their complaint to the ADCQ.
In determining whether to make a finding of discrimination (direct or
indirect) in respect of the treatment an offender received during the course
of their sentence by the correctional management (the Protected
Defendant), the ADTQ must consider whether the offender's treatment was
reasonable under all the circumstances.
The amendments will also set down criteria that the ADTQ must consider
when determining whether the treatment was reasonable under the
circumstances.
In order to ensure that awards of money are appropriately made and not act
as an enticement to offenders to bring mischievous complaints, the
amendments will also require that the ADTQ only award compensation to
an offender in circumstances where the Protected Defendant has acted
maliciously towards the offender and where no other available remedy
would be effective.
Any award or payment to the offender for treatment that has occurred while
under the supervision of the Protected Defendant, whether the action is
based on discrimination or a civil wrong, will not be made to the offender.
Instead the Protected Defendant will pay the award or payment directly
into a Victim Trust Fund established and managed by the Public Trustee.
Medical expenses and legal costs will be excluded from the Victim Trust
Fund.
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Corrective Services and Other Legislation Amendment Bill 2008
The money contained within the Victim Trust Fund will be frozen for a
period of six months to allow eligible victims to be notified of the fund and
that a civil claim may be viable for compensation in respect of injuries
caused by the offender. The amendments allow for the funds to be frozen
for a further month once all eligible victim claims have been finally
decided to allow certain State and Commonwealth entities to recover
money from the frozen funds in respect of any unpaid debts the offender
has accumulated. Any residual remaining in the fund will be paid to the
offender.
An `offender' is as defined in the Corrective Services Act 2006 and
includes a prisoner, parolee, individual on a community based order or
continuing supervision order under the Dangerous Prisoners (Sexual
Offenders) Act 2003. `Protected Defendant' includes the Crown,
government departments, engaged service providers, community service
supervisors and their employees, and other persons exercising official
functions with respect to the supervision and rehabilitation of offenders and
an entity employed or engaged under this Act whose functions include
rehabilitating offenders.
The amendments also enable prescribed Queensland Corrective Services
Dog Squad Officers to lawfully possess dangerous drugs for the purpose of
training drug detection dogs in the manner in which drugs possessed for
such purposes must be managed.
Estimated Cost for Government Implementation
The costs of operating the victim trust fund will be met from within
existing agency resources.
Consistency with Fundamental Legislative Principles
The Legislative Standards Act 1992 defines fundamental legislative
principles as "principles in relation to legislation that underlies a
parliamentary democracy based on the rule of law".
It is arguable that modifying the way offenders will access
anti-discrimination proceedings and providing a mechanism to require
compensation and damages that traditionally would have been made to
offenders to be redirected to victims of crime (and, in certain
circumstances, the State and Commonwealth for unpaid debts) does not have
sufficient regard to the rights and liberties of individuals as required by the
Legislative Standards Act 1992.
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Corrective Services and Other Legislation Amendment Bill 2008
From the outset, it can generally be stated that the constraints of the
correctional environment, the need to protect the safety and security of the
correctional system and the people therein, together with the need to
protect the wider community, justifies the need for the proposed actions to
be taken. The Scrutiny of Legislation Committee in Alert Digest No. 4 of
2006 in relation to the Corrective Services Act 2006 commented on the
issue of prisoners' rights as follows:
"12 In the circumstances, the committee proceeds from the position
that prisoners have rights. However, those rights must necessarily
take a significantly attenuated form, given the status of prisoners
and the imperatives necessarily associated with the conduct of
corrective institutions. These imperatives include the need to
maintain order and security, to prevent violence and to prevent
escapes. In addition, whilst the focus of incarceration has moved
substantially towards rehabilitation, it rightly retains a punitive
and deterrent element. On that basis, it is inevitable that a prison
environment will afford prisoners fewer facilities and personal
freedoms than those enjoyed by the general public.
13. Against this background the basic question is whether the bill,
both generally and in respect of specific issues, achieves an
appropriate balance between the rights of prisoners and the
countervailing rights of the public, corrective services staff and
even of other prisoners. That is ultimately a matter for
Parliament to determine."
The amendments depart from the fundamental legislative principles as
follows:
1. The application of the Bill to unsentenced persons under the
supervision of the protected defendant.
2. The provision for the offender to make full use of internal complaints
mechanism prior to complaints being made to the ADCQ.
3. The determination of victims claims where there has been no
progression of the claim
4. The Bill transitionally provides that payment of compensation for a
contravention of the Anti-Discrimination Act 1991 or for an award of
damages for a civil wrong committed prior to commencement and
paid after commencement by a Protected Defendant is subject to the
creation of a victim trust fund.
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Corrective Services and Other Legislation Amendment Bill 2008
5. The Bill provides for a change to prisoners' status under the
Limitation of Actions Act 1975 so they are no longer considered to be
"under a disability".
1. The application of the Bill to unsentenced persons under the
supervision of the protected defendant
The Bill applies to all `prisoners' as defined under the Corrective Services
Act 2006. The definition under Schedule 4 of the Corrective Services Act
2006 includes individuals, such as persons on remand, who have not been
convicted but are in the custody of the chief executive.
The Fundamental Legislative Principle
The legislation does not adversely affect the rights and liberties, or impose
obligations, retrospectively. (Section 4 (3) (g) Legislative Standards Act
1992).
The Departure
The Bill applies to `prisoners' as presently defined under the Corrective
Services Act 2006.
The Reason for the Departure
Although an individual who is on remand may not have been convicted or
sentenced they are not prevented from making a complaint or obtaining a
remedy in respect of a complaint.
In addition, as with all offenders, if an individual on remand receives an
award of compensation or payment of damages their victim/s may be
entitled to make a civil claim in tort against an offender, regardless of the
amendments the Bill introduces. The Bill does not diverge significantly
from existing civil remedies available to victims, other than introduce a
mechanism for recovery and remove the limitation period in which a
potential victim may bring a claim. The victim must still prove on the
balance of probabilities that the unsentenced person committed a wrong
against the victim before the victim has any entitlement to access
compensation.
Regardless of the Bill providing that the State and Commonwealth may
recover from the fund victim compensation payments, outstanding fines or
child support payments the offender would be liable for these debts. The
provisions simply provide another method of recovery for the relevant
collection entities.
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Corrective Services and Other Legislation Amendment Bill 2008
2. The provision for the offender to make full use of internal
complaints mechanisms prior to complaints being made to ADCQ
The Corrective Services Act 2006 is to be amended by Clause 4 of the Bill
to require that offenders use internal complaints mechanism, which
includes making a complaint to an official visitor in the custodial
environment, prior to making a complaint to the ADCQ. This process may
take up a period of five months for an offender in custody and four months
for an offender supervised in the community.
The Fundamental Legislative Principle
The legislation is consistent with principles of natural justice. (Section 4 (3)
(b) Legislative Standards Act 1992).
The Departure
Clause 4 of the Bill inserts sections 319E and 319F which require an
offender to use internal complaints mechanism prior to making a complaint
to the ADCQ.
The Reason for the Departure
In the prison environment in particular, offenders are able to lodge
complaints through many different avenues and processes. Prisoners may
seek internal reviews or confidentially refer matters of concern to prison
management, the Director-General or the Minister. In addition, Official
Visitors attend each centre on a regular basis to hear and make
recommendations on complaints. Prisoners may also correspond
confidentially with the Ombudsman.
However, offenders with perceived discrimination complaints have
increasingly sought to by-pass established internal complaints mechanisms
established by correctional authorities and take their complaints directly to
the ADCQ. This provides no opportunity for correctional management to
attempt to resolve the matter internally or review its practices.
Correctional authorities have identified that many of the complaints made
by offenders which are ultimately resolved through the conciliation
process, are complaints that could have been resolved through internal
complaints processes just as effectively and with significantly less burden
on public and correctional resources.
The clause requires that offenders use internal complaints mechanisms,
which includes making a complaint to an official visitor in the custodial
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Corrective Services and Other Legislation Amendment Bill 2008
environment, prior to making a complaint to the ADCQ. It does not
prevent offenders from making a complaint to the ADCQ.
This process may take up a period of five months for an offender in custody
and four months for an offender supervised in the community. However,
the new provisions do not mandate that each complaint must take four to
five months before a final decision is made, rather it is the longest period it
would take if action were taken by either party using the period considered
necessary for investigating minor and major complaints and utilising the
review provisions.
For example, an offender in custody makes a written complaint to the
General Manager of the corrective services facility where the offender is
currently accommodated. The complaint is investigated by Queensland
Corrective Services' Ethical Standards Unit, who identify that the
complaint is one of a minor nature and therefore a written response to the
complaint will be provided to the offender within 30 days, this may take
considerably less time. If the offender is satisfied by the response to the
complaint then the matter is resolved. However, should the offender be
unsatisfied with response, then the offender must make a further written
complaint to the Official Visitor who attends the corrective services facility
where the offender is currently accommodated. The Official Visitor has 30
days in which to provide a formal response to the offender's complaint.
Should the Official Visitor identify that the decision of the corrective
services facility can not be resolved the Official Visitor will formally
advise the offender, who will then be able to take the complaint to the
ADCQ.
The use of the internal complaint mechanism will provide an opportunity
for decisions to be reviewed and most matters to be resolved quickly at a
local level in order to avoid delays associated with pursuing judicial
remedies. In addition, as correctional management will be alerted to the
alleged discrimination the offender will not be unnecessarily subjected to
any protracted unfair treatment arising out of the complaint.
3. Finally deciding victims claims where there has been no progression
of the claim
The Corrective Services Act 2006 is to be amended by clause 4 of the Bill
to include new provisions regarding the payment of eligible victim claims
from the victim trust fund.
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Corrective Services and Other Legislation Amendment Bill 2008
The Fundamental Legislative Principle
The legislation does not adversely affect the rights and liberties, or impose
obligations, retrospectively. (Section 4 (3) (g) Legislative Standards Act
1992).
The Departure
The amendment clause 4 inserts section 319Y to direct the payment of
eligible victim claims from the victim trust fund. Payments are to be made
as soon as practicable after all victim claims have been finally decided. In
the Bill the Public Trustee may be satisfied that a victim claim is finally
decided where a victim fails to progress a claim against the victim trust
fund after one year from the last step taken in the proceedings.
This may be considered to be a breach of the Legislative Standards Act
1992 as the rights of the victim to take action against the claim have been
made based on the lapse of time.
The Reason for the Departure
The inclusion section 319Y (3) (c) in the Bill is necessary to provide
certainty in respect of competing claims and timeframes for victims who
have decided to pursue a claim and ensure that the process is not
unnecessarily protracted for an offender who would be denied payment of
the residual of the victim trust fund by the Public Trustee for an extended
time.
4. The Bill transitionally provides that payment of compensation for a
contravention of the Anti-Discrimination Act 1991 or for an award of
damages for a civil wrong committed prior to commencement and paid
after commencement of the amendments by a Protected Defendant is
subject to the creation of a victim trust fund.
The Corrective Services Act 2006 is to be amended by clause 7 of the Bill
to provide that any payment or award of compensation will be subject to
sections 319D and 319I (1), (4) and (5) of the Bill.
The Fundamental Legislative Principle
The legislation does not adversely affect the rights and liberties, or impose
obligations, retrospectively. (Section 4 (3) (g) Legislative Standards Act
1992).
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Corrective Services and Other Legislation Amendment Bill 2008
The Departure
The amendment clause 7 inserts sections 319D and 319I (1), (4) and (5) to
provide that the amendments will apply to any payment of compensation or
damages made by the protected defendant after commencement.
The Reason for the Departure
It has been identified that the legislation will adversely affect those who
may have incurred injury before the amendments was brought into force.
The scheme will not apply to a decision, in respect of a complaint under the
Anti-Discrimination Act 1991 which has been made prior to the
commencement of the amending provisions. However, in aiming to
balance the rights of victims it is considered in the public interest that
victims be able to access this money as soon as possible once the scheme
comes into operation. Therefore, the scheme will apply to any award of
compensation and any payment of compensation or damages made after
commencement.
There can be a considerable amount of time elapse between when an injury
may occur to an offender and when a claim is finally determined and
payment made by the State. There are a number of offender claims where
an injury occurred while under supervision prior to the commencement of
the new provisions. If these matters were to be paid out after
commencement, and were not included within the scope of the proposed
legislative scheme there could be negative implications in relation to the
intent of the new legislation, particularly as it may raise victim expectations
that the new provisions will enable them to make a decision about bringing
a civil claim against a victim trust fund.
It is considered to be on balance, in the public interest that the operation of
the scheme aims to provide victims access to any available money that falls
within the ambit of the scheme over the offender's expectation to receive
money that will not be subject to the new provisions. Indeed this is also in
keeping with the common law position that if a victim were to become
aware of any offender money regardless of when the injury occurred that
they would be entitled to make a claim for compensation against that
offender. Therefore, the scheme will apply to any payment of
compensation and damages made by the State after commencement for any
injury occurring before or after commencement.
The scheme will not apply to a decision, in respect of a complaint under the
Anti-Discrimination Act 1991 which has been made prior to the
commencement of the amending provisions.
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Corrective Services and Other Legislation Amendment Bill 2008
5. The Bill provides for a change to prisoners' status under the
Limitation of Actions Act 1974 so they are no longer considered to be
"under a disability".
Clause 12 amends the Limitations of Actions Act 1974 to provide that
prisoners are no longer considered to be "under a disability." For example,
prisoners will have three years from the date on which a cause of action
arose to make a claim for negligence occurring while serving their
sentence.
The Fundamental Legislative Principle
The legislation does not adversely affect the rights and liberties, or impose
obligations, retrospectively. (Section 4 (3) (g) Legislative Standards Act
1992).
The Departure
Clause 12 amends section 5 (2) of the Limitations of Actions Act 1974 to
remove a convict who, after conviction, is undergoing a sentence of
imprisonment as a person considered to be "under a disability" for the
purposes of the Limitations of Actions Act 1974.
The Reason for the Departure
Prisoners are deemed to be "under a disability" by virtue of section 5(2) of
the Act. This means for example, that a prisoner would have three years
from the date they are released from prison to bring a claim for negligence
occurring whilst in prison.
This disparity reflects a time when prisoners may have been considered to
be at a disadvantage when attempting to gain access to justice. Prisoners
now have access to telephones and videoconferencing and also official
visitors and other external agencies such as the Ombudsman.
It is no longer justifiable to consider a prisoner to be "under a disability"
for the purposes of the Act. There are also practical considerations in
respect of claims brought by prisoners who are serving indefinite or life
sentences and the ability of prison authorities to respond to these claims
many years after the cause of action arose.
Furthermore, an offender may seek to use the extended limitation period to
avoid having to pay compensation to a victim under the "freeze and notify"
procedure above. In certain circumstances, the prisoner may simply delay
bringing a claim for negligence in the hope that the victim may no longer
be around to make a claim against any compensation received.
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Corrective Services and Other Legislation Amendment Bill 2008
Consultation
The Departments of Premier and Cabinet, Justice and Attorney General,
Queensland Health, Queensland Police Service and Queensland Treasury
have been consulted on the policy objectives and on the drafting of the
provisions.
The Solicitor-General's advice has been obtained on the Bill.
Notes On Provisions
Part 1 Preliminary
Clauses 1 and 2 provide for the short title of the Act and commencement
of the provisions of the Act on proclamation.
Part 2 Amendment of the Corrective
Services Act 2006
Clause 3 is a formal provision that give effect to the amendments to the
Corrective Services Act 2006.
Clause 4 provides for the insertion of new Parts 12A and 12B into Chapter
6 of the Corrective Services Act 2006.
319A Definitions
This section provides the meaning of "tribunal," "protected defendant" and
"relevant person" for part 12A. Protected defendant includes the Crown,
government departments, engaged service providers, community service
supervisors and their employees, and other persons exercising official
functions with respect to the supervision and rehabilitation of offenders.
As offenders who are supervised in the community are referred to
rehabilitation services that are operated by non-government organisations,
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Corrective Services and Other Legislation Amendment Bill 2008
protected defendant also includes an entity employed or engaged under this
Act whose functions include rehabilitating offenders.
319B Purpose of part and its achievement
The section reflects section 3(2) and (3) Corrective Services Act 2006
which recognises that that every offender should be treated humanely and
with dignity and that every member of society has certain basic human
entitlements, and that, for this reason, an offender's entitlements, other than
those that are necessarily diminished because of imprisonment or another
court sentence, should be safeguarded.
However, the section also recognises that other factors also impact on the
supervision of offenders and the provision of these entitlements in the
correctional setting. The role of the correctional authorities is to balance
tensions between ensuring the safety and security of corrective services
facilities, delivering rehabilitative services within limited resources and
managing offender and community expectations.
As with any government agency the community expect that public funds
will be responsibly managed. In the correctional environment this means
that the services that correctional authorities deliver, which include basic
entitlements such as food and shelter, is in keeping with a level that is not
disproportionate to that available to the community, is reasonably available
within the correctional environment and does not compromise the safety
and security of corrective services facilities.
Offender expectations of what they should receive or access in the
correctional environment is often in contrast to the community
expectations. For many offenders in the custodial setting this will be the
first time in their adult life that they will receive three balanced meals a day
and under the government's duty of care, basic health care. Correctional
authorities attempt to accommodate requests by offenders that are within
reason, for example requests associated with managing a medical condition
which may require the offender be treated differently to other offenders,
requests that are excessive and are not in line with a practical or medical
need will not be met.
Law-abiding citizens are subject to their own financial constraints when
seeking to acquire goods and services. An individual by virtue of his or her
incarceration should not be able to demand that the government provide a
specific or idealistic level of service where their needs are already being
adequately met by correctional management.
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Corrective Services and Other Legislation Amendment Bill 2008
This section makes it clear that in managing the expectations of offenders
in custody there is a balance between the financial and other constraints to
which protected defendants are subject in their treatment of offenders and
the need to continue to respect the offender's dignity.
The above purpose is achieved by requiring offenders to use internal
complaints procedures provided by the department before making a
complaint to the ADCQ and modifying the way the ADCQ treat
complaints by offenders regarding a protected defendant.
319C Relationship with Anti-Discrimination Act
This section is a formal provision that gives effect to the amendments to the
Corrective Services Act 2006 despite the Anti-Discrimination Act 1991.
319D No property or interest right of complaint
This section describes how the Bill will affect an offender's right to make a
complaint and access money awarded by the ADTQ and alter the way in
which that right can be exercised but does not remove the right.
Subsection (1) confirms that offenders have the right to make a complaint
about an alleged contravention of the Anti-Discrimination Act 1991 by a
protected defendant.
Subsection (2) specifies that although the right is preserved the offender
has no property or interest in the right of complaint.
Subsection (3) clarifies that the right to make a complaint is subject to
sections 319E and 319F requiring other complaint mechanisms to be used
before making a complaint to the ADCQ.
319E Complaint to chief executive required first
This section sets out the first step in the internal complaints process that
offenders are required to use before making a complaint with the ADCQ.
Subsection 1(a) and (b) distinguish who the complaint in writing must be
made to based on whether the offender was supervised in the community or
in custody at the time of the alleged contravention of the
Anti-Discrimination Act 1991.
Subsection (2) provides for situations where a formal response to the
complaint by the chief executive is provided within the prescribed
timeframes.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (3) clarifies that subsection 1(a) applies subject to the
requirement to make a complaint to an official visitor as set out in section
319F.
319F Complaint to official visitor required first
This section only applies to an offender who is in custody when the
offender has been notified in writing that the chief executive is finished
dealing with the offender's complaint.
Subsection (3) provides for situations where a formal response to the
complaint by the official visitor is provided within the prescribed
timeframes.
319G When treatment of offender by protected defendant is not direct
discrimination. 319H When term imposed on offender by protected
defendant is not indirect discrimination
These sections make it clear that the correctional environment is unique
and that any alleged discriminatory action or conduct must be considered
within this context.
These provisions require the ADTQ to consider whether or not correctional
management's attempt to accommodate such a request was reasonable or
not under the circumstances in relation to both direct and indirect
discrimination cases.
Prison management in particular must have authority to make decisions to
ensure the good order and security of corrective services facilities and the
safety of the community, staff, visitors and offenders. It is due to the level
of control over offenders that is required to ensure safety and security and
the use of standard practices to facilitate this outcome that decisions are
frequently questioned and complaints are regularly made by offenders.
Correctional authorities receive requests for special treatment from
offenders on an almost daily basis. Corrective Services must be able to
consider factors such as available resources, community expectations and
fairness to other offenders when deciding whether to grant a request and to
reach a compromise solution where necessary in order to maintain the
security and safety of staff, visitors and offenders.
For example, a prisoner requests a kosher diet. The practical realities of
operating a corrective services facility mean there is insufficient storage
space to keep the kosher food separate from other foods, difficulties with
preparing and cooking kosher meals separately and the human resources
required to train staff to cook the meal appropriately causes administrative
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Corrective Services and Other Legislation Amendment Bill 2008
and operational burden. Therefore a decision is made to provide the
prisoner with a pre-packaged frozen kosher meal.
While the frozen meal is not a fresh meal in line with what other prisoners
are served it is adequate to meet the need of the offender to obtain a
nutritionally balanced meal and fulfil their religious requirements.
However, what is expected by the prisoner is a fresh meal and the provision
of the frozen meal by correctional management is not optimal in the
prisoner's view.
These sections require the ADTQ to consider the criteria set out as
described, despite section 10 and 11 (2) of the Anti-Discrimination Act
1991, in cases where the treatment complained of occurred while an
offender was under the supervision of the Protected Defendant.
319I Restrictions on tribunal compensation orders
This section restricts the ability of the ATDQ to award compensation for a
contravention of the Anti-Discrimination Act 1991 in relation to an
offender and provides that money can only be awarded where the ADTQ
finds that the protected defendant acted in bad faith and no other
non-compensatory order, such as an apology or an undertaking to
discontinue the practice in question, under the Anti-Discrimination Act
1991 would effectively redress the matter.
Subsection (3) places a requirement on the ADTQ to provide written
reasons to the offender and the protected defendant that no
non-compensatory order effectively redresses the offender for the
contravention.
Subsection (4) clarifies that for the purposes of the clause 4 the ADTQ can
not require that payment or interest on an amount of compensation be made
directly to the offender. A compensation order has affect as an award of
compensation only for part 12B and the offender will have no property or
other interest in the compensation.
Subsection (5) defines compensation orders and non-compensatory orders
by reference to the Anti-Discrimination Act 1991.
319J Definitions
This section provides the meaning of "award of compensation", "award of
damages", "child support registrar", "collection entity", "disbursements",
"finally decided", "legal costs", "potential claimant", "relevant award",
"relevant money", "victim claim" and "victim trust fund" for part 12B.
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Corrective Services and Other Legislation Amendment Bill 2008
319K Interaction between divs 2 to 4 and div 5
This section provides that Divisions 2 to 4 of this part are subject to
Division 5.
319L No property or interest in causes of action
This section confirms that offenders still have the right to bring a
proceeding for a civil wrong against a protected defendant but provides that
they have no property or interest in the cause of action. Any damages
awarded for a cause of action against a protected defendant for a civil
wrong must be dealt with under this part.
The Civil Liability Act 2003 and the Personal Injuries Proceedings Act
2002 apply to these proceedings.
319M No property or interest under agreements
Where a protected defendant enters into an agreement to pay damages or
compensation for a civil wrong committed by the protected defendant
against an offender the agreement contains the terms implied by this
section.
Subsection (2) implies terms that the damages or compensation are to be
paid to the protected defendant to be dealt with under this part and the
person has no property or interest in those funds.
Subsection (3) provides that an agreement to deal with compensation or
damages other than as provided by this part is void.
319N Relevant money held in trust in a victim trust fund
This section provides that relevant money awarded in relation to a person is
deemed to be held in trust in a victim trust fund.
Subsection (1) specifies the purposes for which the relevant money is held
on trust.
Subsection (2) provides that relevant money held under trust per this
section form a victim trust fund.
Subsection (3) acknowledges that other provisions of State or
Commonwealth law may apply to relevant money held in trust.
319O Chief executive to be notified of victim trust fund
This section requires the protected defendant or a prescribed protected
defendant to notify the chief executive within seven days after the relevant
money is awarded if the protected defendant is not the State.
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319P Victim trust fund to be transferred to public trustee
This section requires the protected defendant to transfer an award of
relevant money within one month after the award is made.
319Q Discharge of protected defendant
This section discharges the protected defendant upon receiving a receipt
from the public trustee for the amount of the victim trust fund or for the
application, distribution or appropriation of the amount of the victim trust
fund.
319R Relevant money to form a separate victim trust fund
This section provides that the requirements of Clause 4 must be complied
with for each award of relevant money.
319S What is a victim claim
This section provides a definition of a victim claim for the purposes of
making distributions from a victim trust fund.
Subsection (1) provides that a victim claim relates to a claim of damages
that a person has for an injury which was caused by conduct of a relevant
person that, on the balance of probabilities, constitutes an offence. A victim
claim could also arise from the death of a person that, on the balance of
probabilities, resulted from an offence committed by the relevant person.
Subsection (2) provides that subsection (1) applies whether or not the
relevant person was prosecuted for or convicted of an offence for the
conduct. Subsection (1) will also apply if the relevant person was found to
be of unsound mind or unfit for trial.
319T Notice to potential claimants
This section requires protected defendants to give notice to potential
claimants within 1 month of an award of relevant money being made.
Subsection (1) details the requirements of the written notice.
Subsection (2) sets out the methods for complying with subsection (1).
319U Identification of potential claimants
This section allows protected defendants to consult with the director of
public prosecutions or the commissioner of the police service and the chief
executive of the department which administers the Criminal Offence
Victims Act 1995 to identify potential claimants.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (1) allows for the consultation for the purpose of identifying
potential claimants.
Subsection (2) clarifies that any information disclosed by the director of
public prosecutions is a disclosure for the purposes of another Act under
the Director of Public Prosecutions Act 1984 section 24A.
Subsection (3) clarifies that any information disclosed by the commissioner
of the police service is an authorised or permitted disclosure as provided
for by the Police Service Administration Act 1990 section 10.1.
Subsection (4) clarifies that any information disclosed by the chief
executive of the department in which the Criminal Offence Victims Act, is
administered for the purpose in subsection (1) is authorised despite any
other law.
Subsection (5) imposes an obligation on the chief executive, when satisfied
that there are no potential claimants on a victim trust fund, to notify the
public trustee in writing.
319V Giving of information to potential claimants
This section specifies the information that is to be provided to potential
claimants and the obligations of the protected defendant and claimants in
relation to this information.
Subsection (1) specifies the particular information that a protected
defendant must provide in response to a request from a potential claimant.
Subsection (2) permits this information to be provided despite any
agreement in relation to the award limiting disclosure of the information. It
further provides that such disclosure is not a contravention of the
agreement.
Subsection (3) provides that the information in subsection (1) must not
include personal details of a potential claimant unless that person has given
written consent for such information to be disclosed.
Subsection (4) specifies the limitations on disclosure of information
received information under subsection (1) by potential claimants.
Subsection (5) defines personal information for the purposes of the section.
319W Starting of victim claims proceedings despite expiry of
limitation period
This section allows for proceedings to be commenced after the expiry of
the limitation period relating to the claim.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (1) allows for a victim claim against a person awarded relevant
money to be made within 6 months after the award despite section 11 of the
Limitations of Actions Act.
Subsection (2) provides that damages awarded for a claim brought under
this section may only be paid from the victim trust fund formed by the
relevant money and not otherwise enforced against the relevant person.
319X Notifying victim claims
This section applies if a person has a victim claim where they have already
started proceedings against the relevant person or commence such
proceedings within 6 months after the award is made.
Subsection (2) provides for notification of the public trustee by the person
and allows the public trustee to request further information in relation to
the claim.
Subsection (3) provides that a claim notified in accordance with subsection
(2) is an eligible victim claim.
Subsection (4) clarifies that if a potential claimant does not respond to a
request by the public trustee, the claim may be rejected.
Subsection (5) requires that the public trustee give written notice of the
details received under subsection (2) to the chief executive.
Subsection (6) defines written notice for the purposes of the section.
319Y Payment of eligible victim claims from victim trust fund
This section specifies when payments from the victim trust fund are to be
made and the manner in which the payments will be made. As there may be
multiple claimants provision is also made for the proportional satisfaction
of eligible victim claims from the victim trust fund. The section specifies
the effect of payment of a claim.
Subsection (1) requires the public trustee to meet eligible victim claims
against the person to whom the relevant award was made.
Subsection (2) requires that the payment is made as soon as practicable
after all proceedings on eligible victim claims against the relevant offender
that were started before the cut off day have been finally decided.
Subsection (3) defines the circumstances in which eligible victims claims
are taken to be finally decided for the purposes of subsection (2). Paragraph
319Y(3) (c) provides certainty to victims who have decided to pursue a
claim in respect of competing claims.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (4) allows for the proportional payment of eligible victims
claims if the amount of the victim trust fund is not enough to pay all of the
awards made on eligible victim claims.
Subsection (5) requires payments to be made to the person named in the
award subject to any Act which provides for holding of money on trust for
persons under a legal disability. Where the award has already been satisfied
by someone else the payment made by the public trustee will be reduced
accordingly.
Subsection (6) provides that an award on an eligible victim claim is, to the
extent of any payment of the award, discharged and not capable of
enforcement against the relevant offender or any other person.
Subsection (7) defines the terms award and cut-off day for the purposes of
this section.
319Z What is an entity claim
This section defines the circumstances in which an entity claim will arise.
Entity claims arise where the State has paid criminal compensation on
behalf of an offender, the offender has outstanding fines or has a child
support debt. These entities may be entitled to make a claim against an
award of relevant money in a victim trust fund in certain circumstances.
Subsection (1) defines the circumstances in which the chief executive of
the department administering the Criminal Offence Victims Act has an
entity claim against a relevant offender. Where the State has paid an
amount pursuant to a criminal compensation order made against the
relevant offender and has not recovered the amount in full it has an entity
claim.
Subsection (2) provides that the SPER registrar has an entity claim where
there are fines owing by the relevant offender.
Subsection (3) provides that the child support registrar, as a collection
entity listed in the definition in paragraph 319J(c), has an entity claim
where the relevant offender owes a child support debt to the
Commonwealth and this amount has not been received in full.
Subsection (4) defines child support debt for the purposes of the section.
319ZA Notice to collection entities of establishment of victim trust
fund
This section requires the chief executive to provide notice to collection
entities. The section sets out the requirements of the notice to be given.
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Corrective Services and Other Legislation Amendment Bill 2008
319ZB Notice to collection entities if amount left in victim trust fund
This section specifies the requirement for the public trustee to notify
collection entities when there is an amount left in the victim trust fund after
satisfying eligible victim claims.
Subsection (1) determines when the public trustee must work out the
amount left in the victim trust fund. Where eligible victims claims have
been made, the amount left in the fund is to be determined within one
month after paying those claims. Alternatively, the amount left in the
victim trust fund must be determined within one month after the protected
defendant has taken reasonable steps to identify persons who may have a
victim claim and is satisfied that there is no person who has a victim claim
relating to the fund.
Subsection (2) applies when there is amount left in the victim trust fund
available for the satisfaction of eligible entity claims. In this situation
subsection (2) specifies the requirements for the notice in writing which
must be given to each collection entity.
319ZC Notifying entity claims
This section provides that a collection entity has an eligible entity claim if
it notifies the amount to the public trustee within one month of receiving
notice under s319ZB(2) and providing evidence of the entity claim that
satisfies the public trustee that the relevant person is liable for the entity
claim.
Subsection (4) provides that the public trustee may reject an entity claim if
the collection entity fails to comply with a request for evidence under
subsection (2) (b) without reasonable excuse.
Subsection (5) provides that the public trustee must give a copy of the
written notice or the evidence received under subsection (2) to the chief
executive within 7 days after receiving the notice or the evidence.
319ZD Payment of eligible entity claims from victim trust fund
This section provides for the payment of eligible entity claims and specifies
how payment is to be made.
Subsection (1) requires the public trustee to pay from the amount left in the
fund after satisfying eligible victim claims, amounts of eligible entity
claims of which it has received notice.
Subsection (2) specifies when payment must be made.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (3) lists the order of priority for payment amongst collection
entities.
Subsection (4) specifies that payment under this section discharges the
eligible entity claim to the extent that it is paid.
319ZE Payment to offender of victim trust fund surplus
This section sets out the circumstances in which an offender will be paid
the amount left in a victim trust fund after the public trustee has met
eligible victim claims and eligible entity claims.
Subsection (1) requires the public trustee to determine the amount left in
the fund within one month of complying with the requirements to satisfy
any eligible victim claims and eligible entity claims.
Subsection (2) applies when there is an amount left in the victim trust fund
after satisfying eligible victim claims and eligible entity claims. If the
person to whom the award was made is a prisoner payment of the surplus is
made to the chief executive for transfer to the prisoner's trust account. If
the person is not a prisoner the amount is to be paid at their direction.
319ZF Payment to offender if no victim claims or entity claims against
offender
This section provides for payment of the amount of the victim trust fund in
the situation the public trustee is not notified under s319ZC of the amount
of any entity claims against the offender. The public trustee must pay the
amount of the victim trust fund to the relevant offender within 2 months
after giving notice to collection entities under s319ZB.
319ZG Exception for future medical expenses
This section provides that Divisions 2 to 4 do not apply to an amount being
payable by a protected defendant as damages for future medical expenses.
319ZH Exception for legal costs
This section provides that legal costs do not form part of a victim trust
fund.
Subsection (1) specifies that the trust fund does not include (a) costs
ordered to be paid by the protected defendant or, (b) under an agreement
about relevant money or, (c) for an award of damages inclusive of costs, an
amount reasonably attributable to the legal costs of the relevant offender.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (2) provides that the amount referred to in (1) (c) is the amount
decided by the protected defendant based on a bill of costs from the legal
practitioner concerned and notified to the relevant offender.
Subsection (3) provides for the relevant offender by written notice to
dispute the protected defendant's decision as to the payment of costs and to
apply for an assessment of costs under the Legal Profession Act 2007.
Subsection (4) specifies that the assessment of costs is to be conducted as if
the defendant were ordered to pay an unstated amount of costs by a court.
This allows for the assessor to determine the reasonableness of the costs
claimed by the relevant offender.
Subsection (5) deals with the payment of expenses of the cost assessor.
Where the amount of costs assessed is at least 10% more than that the
amount decided by the protected defendant, the protected defendant will be
responsible for the costs of the assessment. In other cases the cost of the
assessment is payable from the victim trust fund.
319ZI Orders in relation to relevant money
This section requires a court or tribunal when making an award of
compensation or an award of damages in relation to a person, to make all
necessary orders to ensure that an amount for future medical costs as
mentioned in section 319ZG or for legal costs in section 319ZH is not held
in a victim trust fund.
319ZJ Agreements in relation to relevant money
This section provides that where the protected defendant enters into an
agreement there is an implied term that an amount mentioned in section
319ZG or 319ZH is not held in a victim trust fund.
319ZK Amounts payable to public trustee for performance of
functions
Subsections (1) and (2) provide that the public trustee is entitled to the
reasonable costs incurred in performance of functions under this part
before payments on an eligible victim award or eligible entity claim or
payment to an offender .
319ZL Maximum legal costs of victim claims
This section limits the amount of a legal practitioner may charge and
recover from a client for work done in relation to a victim claim that may
be payable from a victim trust fund.
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Corrective Services and Other Legislation Amendment Bill 2008
Subsection (1) sets out the formula for determining the maximum amount
the legal practitioner can charge and recover. The amount that can be
claimed as costs varies based on the amount recovered through the victim
claim.
Subsection (2) defines amount recovered as the damages awarded on the
victim claim and not just the amount of the award paid from a victim trust
fund.
Clause 5 provides for the insertion of a new Chapter 6 and parts 13A of the
Corrective Services Act 2006 to enable prescribed Queensland Corrective
Services Dog Squad Officers to lawfully possess dangerous drugs for the
purpose of training drug detection.
344A Object of pt 13A
This section provides that the object of part 4 is to ensure that training in
the department in relation to dangerous drugs is realistic and effective. The
section prescribes how the objective will be achieved.
344B Definitions for pt 13A
This section provides the meaning of "agency arrangement", "dangerous
drug", "drug control direction", "drug control officer", "drug vault",
"register of dangerous drugs for training" and "secure facility" for this part.
344C Appointment and qualifications
This section allows the chief executive to appoint a corrective services
officer as a drug control officer if the chief executive considers the person
has the necessary expertise or experience or if the person has satisfactorily
completed training approved by the chief executive.
344D Appointment conditions
This section provides that a drug control officer holds office on any
conditions stated in the drug control officer's instrument of appointment, a
signed notice from the chief executive, or a regulation. The section
provides that a drug control officer's powers may be limited under a
regulation, a condition of appointment, or by written notice given by the
chief executive to the drug control officer.
344E Issue of identity card
This section requires the chief executive to issue to each drug control
officer an identity card that identifies the person as a drug control officer
under the Bill. The card must contain the signature and a recent photograph
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Corrective Services and Other Legislation Amendment Bill 2008
of the drug control officer. The section allows a single identity card to be
issued.
344F Resignation
This section specifies how a drug control officer can resign.
344G Return of identity card
This section requires that a person who ceases to be a drug control officer
must return his or her identity card to the chief executive within 21 days,
unless the person has a reasonable excuse for not doing so. The maximum
penalty for a contravention of this clause is 40 penalty units.
344H Function and powers of drug control officer
This section sets out the functions and powers of an appointed drug control
officer under the Corrective Services Act 2006. The section provides that a
drug control officer has power, within the department, to do all things that
are necessary to be done in connection with the performance of the drug
control officer's functions.
Example -- A drug control officer may observe the operational
performance of Queensland Corrective Services dogs that have been
specifically trained for drug detection.
344I Keeping dangerous drug for use in department training
This section provides for the keeping and use of dangerous drugs for
training in accordance with a drug control direction.
344J Making drug control direction
This section enables the chief executive of the department to make a `drug
control direction' in relation to a batch of a dangerous drug that has come
into the possession of the department in a prescribed manner. The section
provides mandatory conditions that must be included in a drug control
direction. The section provides that the Chief executive must ensure the
department complies with the conditions of a drug control direction.
344K Entering into agency arrangement
This section authorises the chief executive of the department to enter into
an agency arrangement with the chief executive of another department or
agency if the other party to the arrangement is authorised to possess the
dangerous drugs that are subject to the arrangement. The chief executive
must ensure that the department complies with an agency arrangement.
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Corrective Services and Other Legislation Amendment Bill 2008
344L Requirements for keeping of dangerous drugs for training
purposes
This section sets out the requirements that apply for the department's
possession of dangerous drugs for training purposes.
344M Register of dangerous drugs for training
This section requires the department to keep a register of dangerous drugs
for training. The register may form part of another register whether kept
under this or another Act. The register must be kept in a secure place and in
the way, the chief executive considers appropriate. Unless the chief
executive otherwise authorises, an entry in the register of dangerous drugs
for training may only be made by a drug control officer in the exercise of
his or her functions. The section enables the chief executive to give a
direction to restrict access to information included in the register of
dangerous drugs for training. It is the responsibility of a drug control
officer authorised to record the information in the register to ensure that the
information recorded is prevented from being disclosed to a person not
authorised to have access to it.
344N Information to be recorded in the register of dangerous drugs for
training
This section prescribes the minimum requirements that must be recorded in
the register of dangerous drugs for training about each batch of a dangerous
drug that --
(1) comes into the possession of the department to be used for training
purposes;
(2) is in the possession of the department for training purposes if the batch,
or part of the batch, is taken from the drug vault where it is stored because
it is to be used for training purposes; and
(3) leaves a drug vault for the last time to be disposed of or to be returned to
an entity under an agency arrangement. The recording of the information
required to be recorded under this section must be performed as close as
reasonably practicable to the happening of the event to which the recording
relates.
344O Restriction on release of information from register of dangerous
drugs for training
This section ensures the security of a drug vault and the safety of a drug
control officer or another person associated with keeping dangerous drugs
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Corrective Services and Other Legislation Amendment Bill 2008
in the possession of the department for training purposes or a police officer
who reasonably needs the information for the performance of the officer's
functions under an Act. A direction may be given by the chief executive in
circumstances where the safety of persons or security of the drug vault
maybe prejudiced. The chief executive of the department may give a
direction that restricts access to information recorded in the register of
dangerous drugs for training to persons other than a drug control officer
performing a function associated with the keeping of dangerous drugs in
the possession of the department. If the chief executive gives a direction, a
written record of the reasons for giving the direction must kept.
Clause 6 provides for the amendment of section 349 of the Corrective
Services Act 2006 to include individuals employed or engaged by a
protected defendant and the public trustee, when engaged by a protected
defendant to administer a victim trust fund or an individual with whom the
chief executive consults under section 319U eg. an officer from the
Queensland Police Service. This ensures that persons involved in the
administration of victim trust funds created from awards of offender money
do not attract civil liability for an act done, or omission made, honestly and
without negligence under the Corrective Services Act 2006
Clause 7 provides for the replacement of chapter 7A heading in the
Corrective Services Act 2006.
Clause 8 provides for the insertion of a new 7A Transitional Provisions for
the Corrective Services and Other Legislation Act 2008.
Section 478C provides for definitions for pt 2
Section 478D provides that where discrimination complaints that were not
decided before the commencement, Chapter 6 part 12A other than section
319D and 319I(1),(4) and(5) does not apply to the complaint.
Where an award of offender money is made after the commencement of the
section 478E provides that Chapter 6, 12B will apply to the award even if
the wrong related to conduct of the protected defendant that occurred
before the commencement of the section.
Clause 9 amends the Schedule 4 dictionary to the Corrective Services Act
2006 to include definitions for terms used in the Bill.
Clause 10 is a formal provision that gives effect to the amendment to the
Drugs Misuse Act 1986.
Clause 11 amends s 125 of the Drugs Misuse Act 1986 to clarify that a
person who is a drug control officer within the meaning of the Police
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Corrective Services and Other Legislation Amendment Bill 2008
Powers and Responsibilities Act 2000 and Corrective Services Act 2006 is
permitted to receive and dispose dangerous drugs.
Clause 12 is a formal provision which gives effect to the amendment of the
Health Act 1937
Clause 13 is a formal provision inserts a new heading for transitional
provisions into Part 8 of the Health Act 1937.
Clause 14 inserts a new part 8 to provide for the amendment of the Health
(Drug and Poisons) Regulation 1996 by the Corrective Services and Other
Legislation Amendment Act 2008 does not affect the power of the Governor
in Council to further amend the regulation or to repeal it.
Clause 15 is a formal provision which gives effect to the amendment of the
Health (Drug and Poisons) Regulation 1996
Clause 16 provides for the amendment of section 271 (Prohibition on
dispensing etc. regulated poisons) by providing that the prohibition does
not apply to a drug control officer within the meaning of the Police Powers
and Responsibilities Act 2000 and a drug control officer within the
meaning of the Corrective Services Act 2006 as prescribed by these
provisions
Clause 17 is a formal provision that gives effect to the amendments to the
Limitation of Actions Act 1974.
Clause 18 provides for the amendment of section 5 of the Limitation of
Actions Act 1974 to remove the words "or a convict" to imprisonment'
Clause 19 is a formal provision which inserts a new part 7 Transitional
provision for the Corrective Services and Other Legislation Amendment
Act and provides that the amendment made by this Act only applies in
relation to a cause of action arising from the commencement of this
section.
© State of Queensland 2008
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