Moyle, Paul --- "Unsafe Work Practices Leads to Findings of Negligence Against Private Prison Operator: Jarvis v Australasian Correctional Management Pty. Ltd" [1998] MurdochUeJlLaw 10; (1998) 5(1) Murdoch University Electronic Journal of Law

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Unsafe Work Practices Lead to Findings of Negligence Against Private Prison Operator: Jarvis v Australasian Correctional Management Pty. Ltd [1]

Author:	Paul Moyle BA LLB Grad Cert H Ed Barrister-at-Law Senior Lecturer; School of Law, University of Western Australia
Issue:	Volume 5, Number 1 (March 1998)

Contents

Context for the case
Facts
Justice Healy's ruling
Analysis
Conclusion
A Proposed Solution: Is There a Need for a New Monitoring Agency?
Notes

Context for the case

1. State governments are vigilant for ways to reduce their budgets and increase efficiencies in areas of traditional responsibility.[2] Contracting out and competitive tendering have become a national trend in the 1990's.


2. For the Queensland Government, this has meant exploring the policy option of contract managing correctional centres. This policy option has become a recent Australian penological development whereby private companies are engaged to provide custodial and management services to state correctional authorities. Queensland was the first state to open a private prison, Borallon Correctional Centre with a capacity of 240, in January 1990. In 1992, the Queensland government decided to privatise another correctional centre. Arthur Gorrie Correctional Centre was a considerably larger prison holding 380 inmates. The capacity of Borallon and Arthur Gorrie have subsequently been expanded to hold 425 and 632 inmates respectively.


3. It is a significant cost to build and operate prisons and increases in incarceration rates in most Australian states place further pressure upon state correctional authorities to turn to the private sector to build and manage prisons. In early 1998, about 12% of the total Australian prison population (2,333 inmates) are being incarcerated in contract managed prisons. Harding estimates that 'about 20 per cent of the projected Australian prison population could be held in a total of eight private prisons by the end of the twentieth century. This would constitute the highest percentage in any country in the world.'[3]


4. Private contract management of prisons continues to raise important political, administrative and legal issues within Australian corrections. The case of Jarvis v Australasian Correctional Management Pty Ltd is the first reported private law negligence action (taken by an employee of a private corrections firm) against a private contractor in Australia. The contractor, Australasian Correctional Management Pty Ltd (ACM), (Australia's largest private correctional company in 1993) was engaged by the Queensland Corrective Services Commission (QCSC) to manage Arthur Gorrie. This Centre is the main remand and reception centre for South-East Queensland. It was Australia's only privately operated remand and reception centre. ACM was responsible for all aspects of Arthur Gorrie's management and operation including:


• ... intake and processing of all remandees from police custody and transporting to and from courts;
• calculation and processing of offender fines, penalties, and bail payments;
• intake and processing of all sentenced offenders from the courts;
• preparation of sentence management plans in accordance with QCSC regulations and requirements;
• management of a young offender's unit';
• management of a sentenced custody population.[4]
5. The QCSC noted in its 1993 Annual Report (for the year ending June 30th 1993) that both Borallon and Arthur Gorrie were regularly audited to ensure that they provided 'correctional services in accordance with contractual arrangements.'[5] Despite this Justice Healy found unsafe work practices had existing at Arthur Gorrie during that period. It is unclear how the QCSC identified and measured standards, or indeed what the standards were between May 1992 and May 1993, the period to which Justice Healy's judgement refers. Evidence suggests that a contract auditor or monitor was not located at Arthur Gorrie during Jarvis' employment. In its 1993 Annual Report the QCSC notes that there was an intention to create two positions of liaison officers at Arthur Gorrie. This policy was not implemented. Had the QCSC implemented this, many of the factors contributing to the unsafe work environment at Arthur Gorrie may have been identified and rectified.


Facts

6. The plaintiff was a 35 year old married man employed between May 1992 and May 1993 as a custodial correctional officer with ACM. In early 1992 he applied for the position of correctional officer. He was granted an interview, passed a medical and successfully completed a seven week training course. The plaintiff was taught how to breach prisoners, how to detect drug users, the theory of unit management and physical control of prisoners, the use of firearms and first aid.


7. Justice Healy found that the plaintiff was in good mental health when he commenced employment with the defendant company in 1992. Specialist medical evidence given by Dr Mulholland indicated he was 'unable to find any pre-existing history that gave [him] any concern about the plaintiff.'[6] Another doctor who gave evidence at the trial, Dr Curtis, found that Jarvis was of robust character. Mr Jarvis' immediate supervisors also gave evidence that he was a person who could cope with prison work and had been given additional responsibilities within the prison.


8. Trainee correctional officers were given lectures on different sections of a training manual. It is unclear from the judgement whether this manual was provided by the QCSC or ACM. The lectures did not provide an opportunity for practical training in the handling of prisoners. Justice Healy remarked that when the plaintiff took control of a unit containing 36 prisoners he found that the lectures he had been given during the seven week course did not assist him in dealing with the practical problems he confronted. Correctional officers were also required to use a glassed-in secured area known as a fishbowl from which officers could see the unit. Justice Healy found that Mr Jarvis was not taught how to 'open and close the fishbowl doors and was not provided with a list of telephone numbers which would enable him to contact other officers and supervisors within the system. The plaintiff was expected to put through telephone calls on behalf of prisoners. This was a fairly complicated procedure [for which he] was neither trained to do nor given a set of written instructions'[7] to assist him to carry out this task.


9. Appropriate training in dealing with inmate disciplinary matters is an important requirement for correction officers. This was particularly so at Arthur Gorrie since the centre's management adopted an open door policy which encouraged interaction between inmates and correctional officers. Justice Healy found that Mr Jarvis would have been in trouble with his superiors if he had locked the fishbowl doors.[8] This 'open door policy' meant the plaintiff had great difficulty in maintaining inmate discipline because inmates were 'able to come in, sit on the chair, put their feet on the desk, play with the cigarettes on the desk and when told by the plaintiff to leave they would refuse to go and often become abusive.'[9] Mr Jarvis was first assigned to the remand section of the prison where all inmates are classified as high security. Justice Healy noted, 'apart from the trouble he had in maintaining discipline with the open door policy, the plaintiff was placed under additional strain because he could not properly attend to his administrative work while the prisoners could come into his office uninvited. While the open door policy was in place, some of the prisoners who had direct access to the plaintiff were notoriously violent criminals.'[10] Justice Healy concluded that the 'plaintiff who was totally inexperienced and ill trained was left alone in charge of 36 prisoners, many of them violent men who had direct access to him whenever they pleased.'[11]


10. The implications for the centre's security from this practice were fairly serious. Justice Healy noted, the 'prisoners knew that the plaintiff had ... the keys not only to the cells but also to the front door of the prison. He was in constant fear that prisoners would over power him and take the keys as they sometimes threatened to do.'[12]


11. There were also important omissions in the first aid course undertaken by Mr Jarvis. The first aid course, given by a senior first aid officer, covered snake bites, spider bites, broken arms, the making of slings and so on. During lectures, a member of the class asked what they should do about prisoner hangings. The first aid instructor replied, 'I'm not going to get into that because I haven't been involved in any. I am sure ACM will follow that up.'[13] ACM's management did not follow it up. The plaintiff was not given instructions about how to handle an attempted suicide by hanging and none of the first aid books he received from the defendant company contained instructions as to what a prison officer should do if a prisoner tried to hang himself.


12. Justice Healy found there was only one supervisor assigned to the remand side of the prison. 'The plaintiff was often denied the advice of a supervisor when he badly needed advice and support. Often the supervisor was too busy to respond to the plaintiff's call immediately and the plaintiff would wait for up to 4 or 5 hours before the supervisor arrived. The supervisor tried to call in once a day if he was not too busy but it sometimes happened that the plaintiff did not see a supervisor for two days.'[14] 'When the plaintiff was able to seek the advice of supervisors he found that there were few experienced officers in the system to guide him. Recruitment of officers from the old prison system was kept to a minimum because it was the desire of the defendant company to keep what was called the 'old prison guard culture' out of their new system. This caused a real problem for the plaintiff because when he needed guidance and was able to seek the advice of a supervisor he found that the supervisor often did not know what to do.'[15]


13. Apart from physical isolation, there were faults with equipment. The two way radio supplied to the plaintiff often did not work. The plaintiff was told by a supervisor that 'the wrong batteries had been purchased for the "two-ways" and it would only hold a charge for two hours not for a whole eight hour shift. The plaintiff had brief contact with fellow correctional officers when he came on shift or when he had a short tea break. Most of the time he was alone in charge of a unit holding 36 inmates. Sometimes the officer who was to relieve him did not come to work and the plaintiff had to remain on duty for what amounted to a 16 hour shift.'[16] In the early days the regular shifts were from 6 am until 2 pm and from 2 pm until 10 pm and from 10 pm until 6 am the following morning. 'Some officers called rovers were appointed to move around the units and help out when required but not enough rovers were appointed to make a difference to the workload of those in charge of the units.'[17] 'The plaintiff had the power to breach a prisoner who committed an infraction of the rules or to take a privilege from a prisoner who had committed a minor infraction. He found that depriving a prisoner of a privilege caused so much trouble in the unit that it was not an effective sanction. When he breached a prisoner for an infraction such as throwing a chair at him, the prisoners would have to be sent to a supervisor and more often than not [the inmate] would come back to the unit unpunished and the plaintiff would be left to cope as best he could.'[18]


14. Mr Jarvis felt that he needed a second officer to assist him in the fishbowl. He asked a senior member of staff if 'he could have another officer, someone to talk to, particularly an experienced officer who could be consulted if there was trouble in the unit.' He was told by the senior officer that 'the budget would not allow for two officers in the fishbowl.'[19] 'The plaintiff was supplied with a duress, a small black box which is placed on the prison officer's belt [and] set[s] off an alarm if the officer goes past a 45 degree angle ... These devices were not often used because batteries were not available.'[20]


Justice Healy's ruling

15. Justice Healy found that ACM was obliged to take reasonable care for the safety of the plaintiff whilst he was employed at the centre. He recognised that the role of a correctional officer was a 'high risk occupation involving work which is hazardous to mental and physical health in [a] highly volatile environment.'[21] He noted 'the defendant company was not obliged to devise a system of work which would be entirely risk free. "The only duty is to take reasonable steps to provide a system which is reasonably safe having regard to the dangers necessarily inherent in the operation." '[22] Importantly, Justice Healy qualifies this by stressing that even though the occupation of a prison officer was dangerous as a certain amount of risk cannot be eliminated, reasonable care should be taken to lessen it.[23]


16. His Honour made a number of findings relating to the system of work at Arthur Gorrie. Many of these findings impacted upon operational areas and were the responsibility of management. They related to decisions concerning allocating resources and operational and policy decisions which would normally be initiated and reviewed by a centre's management. Due to an unsafe work environment, Jarvis developed post traumatic stress disorder. His Honour found:


The symptoms of stress which the plaintiff developed by December 1992 were caused by the defendant's unsafe system of work. It was reasonably foreseeable that the plaintiff would develop symptoms of stress as a result of an unsafe system of work. The unsafe system of work which caused symptoms of stress in the plaintiff were:

1. the "open door" policy;
2. lack of supervision of correctional officers;
3. inadequate training;
4. one officer per fishbowl or work station;
5. the front door key being kept on the person of the plaintiff; and
6. understaffing.[24]

17. The most important factor contributing to Mr Jarvis developing post traumatic stress disorder was that ACM did not provide de-briefing or follow-up counselling (such as the Interlock program readily available from the QCSC) after Mr Jarvis was requested to intervene in three attempted suicides. On this issue Justice Healy found:


after each critical incident [ACM] could have decreased the risk of [Jarvis] succumbing to post traumatic stress disorder by insisting that he attend the Interlock program after each instance or if he did not do that, by at least supporting him when he returned to work. Apart from the fact that he was not given a debriefing or follow up counselling, he was not supported in the workplace when he resumed work and he still could not obtain the advice of a supervisor when he needed it. [Jarvis] was left alone to cope with the many problems he had in his unit and the other continuing shortcomings in the system which left him vulnerable to the onset of the disorder.[25]
18. Evidence was heard that Mr Jarvis attended three attempted suicides during his twelve month employment.[26] The first occurred on December 28, 1992 at about 9.20 pm. Mr Jarvis and two other officers went to a unit to discover a prisoner laying on the floor. His pulse was faint but he was still breathing. The prisoner 'was cold and clammy and had turned very blue.'[27] The prisoner's pulse was lost several times while attempts were made to revive him. This was the first time Mr Jarvis had seen anyone try to hang himself and he was very distressed by the experience. Mr Jarvis was ordered to do fence checks with another officer despite asking an acting supervisor if he could have a cup of coffee. He was advised that he could not have coffee because there was no-one to do the fence checks. No supervisor spoke to the plaintiff about the incident at that time or later. Justice Healy Noted that Mr Jarvis 'could not get the sight of [the prisoner's] blue face out of his mind. He was not asked by his superiors [from ACM] to attend a counselling or debriefing after the incident.'[28]


19. Mr Jarvis attended a second attempted suicide on January 9, 1993 which involved a slashing.[29] When Mr Jarvis arrived at the cell he found another correctional officer standing at the door. The prisoner in the cell had slashed his wrists and there was blood flowing down the drain of the cell shower recess. Mr Jarvis and another correction officer entered the cell and grabbed the inmate's wrists in order the see what was in his hand. Blood welled through Mr Jarvis' fingers. He noted that when he looked closely at the inmate's neck the 'wound was so deep that [he] could see saliva.'[30] Mr Jarvis put a towel in the gapping wounds. As with the first incident, he resumed his duties and finished his shift without a break. He did not receive any debriefing that night nor any subsequent counselling. Neither did any superior officer direct him to have any counselling regarding the incident. Mr Jarvis reported that he could not 'forget the gaping wound which enabled him to see the saliva in [the prisoner's] throat.'[31]


20. The third attempted suicide Mr Jarvis attended (on April 18, 1993) was a particularly dangerous and stressful incident. An inmate, who appeared to be under the influence of drugs, was running about in his cell jumping up on the window sill, onto the bed and trying to climb up the walls. The inmate had slashed his arms, legs and stomach. Officers were unsure whether he had a razor blade or a cut down knife. They were reluctant to enter the cell because it was difficult to identify the weapon the inmate's hands. The inmate tied a sheet on the top bar of the cell and tied the other end around his neck and jumped from a chair.


21. The correction officers entered the room and in the first instance Mr Jarvis, with the help of another correction officer, tried to hold the inmate up while they attempted to undo the noose around his neck. Justice Healy found that although Mr Jarvis had 'heard of a cut down knife, he had not been supplied with one and had never been given any instructions as to how to use one. He could not undo the knot.'[32] While Mr Jarvis 'was attempting to undo the knot, he was looking into the [inmate's] face ... [the inmate] had turned blue.'[33] Mr Jarvis eventually loosened the knot at which point the inmate began to convulse. Blood was all over Mr Jarvis. Other inmates began to come into the cell and were tyring to get over the top of each other to see what was going on. The inmate was thrashing around violently on the cell floor and had to be restrained with handcuffs. The medical team was called but did not attend. A senior supervisor made another call for the medical staff but was told by them that it was too dangerous and they would not come. Another officer also called on the medical team and was told that it was too dangerous and they would not come.


22. Because they did not know how badly injured the inmate was the officers tried to get him out of the cell. Mr Jarvis said, 'We are just going to carry him out.'[34] The officers linked arms through the handcuffs and lifted him off the ground and carried him through a group of hostile inmates. The injured inmate had been in trouble with the other inmates and because of this they yelled abuse at him. The officers were also abused. Mr Jarvis recalls being 'extremely frightened'.[35] Aboriginal inmates in the opposite unit thought Mr Jarvis and the other officers had injured the inmate (who was an aborigine). The aboriginal inmates began throwing items at the officers. Yet another call for the medical team was made but they still refused to come. A wheelchair eventually arrived although it was difficult to place the inmate in it as he was still convulsing. The officers held him in the chair and pushed him to the prison hospital. The officers sat on the prisoner while a nurse gave him an injection. They continued to sit on the inmate for 10 minutes until he stopped convulsing. The handcuffs were then removed and they left the hospital cell closing the door.


23. Mr Jarvis resumed duties, working approximately eight hours until the end of the night shift. He had no break between the end of the incident and the resumption of duties. Only nine officers were on duty in the prison for that shift. Mr Jarvis had a considerable amount of the inmate's blood on his shirt. Another shirt was not available for him to change into. He was not given a debriefing but was required to write a full report on the incident. He did not receive any counselling or any advice from a superior officer about the incident.


24. Justice Healy noted that Mr Jarvis:


did not speak to anyone about the ... incident. He did not want to talk or think about it. He was angry that medical assistance had been called for three times and no-one came and that [officers] were left for so long without assistance ... The incident was extremely upsetting for Jarvis.[36]

Analysis

25. Although Justice Healy found that unsafe work practices existed at Arthur Gorrie, he did not elaborate upon how this related to accountability and monitoring within the Queensland corrections system. It is submitted that a broader examination of the effectiveness of monitoring and accountability was justified given the unusual facts in Jarvis. Because Justice Healy raised many issues that related to the quality of the correctional environment at Arthur Gorrie, it may have been appropriate for the court to explore, in greater detail, the causes for the unsafe work environment. Some areas, such as poor resourcing, poor training and inadequate managerial support impact upon the safety of the centre from the perspective of officers and inmates. The high suicide rate amongst inmates during Mr Jarvis' employment cannot be so easily disentangled from the quality of the environment and more particularly, resourcing decisions.


26. The issue of reducing inmate suicides is crucial in providing a safer system of work. It would appear that other private prisons are having problems in this area. Port Phillip Metropolitan Men's Prison in Victoria had five inmate deaths in its first eighteen weeks of operation. (Three of these would appear to be suicide although coronial inquiries are yet to be finalised). An editorial from The Age on January 8, 1998 asks, 'Does the prison provide too many 'hanging points'? Why do illegal drugs seem to be so readily available to prisoners? Why is fast access for ambulances so difficult? What procedures are in place to ensure that operators of private prisons meet their responsibilities for the secure incarceration of prisoners and for their safety while in prison?[37]


27. There were five inmate suicides at Arthur Gorrie during Mr Jarvis' employment (May 1992 to May 1993). The question emerges, how many of the suicides could have been avoided if the centre had been operating at a proper level of efficiency and effectiveness in accordance with the QCSC's guidelines and procedures?[38]


28. The QCSC's Mandatory Standards for Secure Facilities for Audit Purposes[39] (hereafter referred to as Mandatory Standards) outline personnel and training issues which apply to Queensland correctional centres. Rule 2 specifies that employee counselling and referral services should be provided. It requires 'the availability of trauma counselling services for all relevant incidents.' Rule 14 outlines the psychological services that should be made available. The intent of this standard is to provide 'suitable psychological services for staff and inmates.' The standard requires that the General Manager's Rules outline, at a minimum, procedures for:


the provision of an on-site comprehensive program of psychological services implemented under the direction of a registered psychologist which includes, at a minimum:

(a) Individual assessment;
(b) Psychotherapeutic services;
(c) Advisory services to management; and
(d) Trauma counselling.

29. Justice Healy found that Mr Jarvis was 'not given instructions as to how to handle attempted suicide by hanging and none of the first aid books he received from the defendant company contained instructions as to what a prison officer should do it if a prisoner tried to hang himself.'[40] Yet prisons are particularly violent places and this fact is widely known among prison officials. The suicide rate in prison is significantly higher than in the general population. There is also a disproportionately high rate of Aboriginal deaths in custody as a measure of the total population, mostly explained by the over-representation of Aboriginal people in custody.


30. National and Queensland data covering secure custody indicate that suicide was, and still is, a major industrial occupational safety and human rights issue within secure custodial environments. Data covering national trends suggests that hanging was the most frequent cause of death in prison, accounting for about 50% of all deaths for the period 1991-1995.41 During 1992-1993, 41 people died in custody in Australian prisons.[42] In Queensland, the QCSC's figures for deaths in custody show that suicide was the highest cause of death in secure custody for the period 1992-1993. For example, suicide accounted for five of the six deaths (83%) in custody.[43]


31. Such a high rate of suicide in custodial environments creates an obligation for correctional managers to ensure that correctional officers are trained not only in basic first aid, but also in methods to identify and manage prisoners who may be at risk of self harm. Proper training in counselling procedures and support by management to reduce self harm behaviour is an essential obligation incumbent upon correctional authorities (including private companies who manage correctional centres). Given this it is puzzling and disappointing that ACM had not provided basic training to its employees in these areas.


32. Having found negligence Justice Healy would have been justified in exploring issues relating to contractual exclusions in the legal arrangements between ACM and the QCSC. The contract for the operation and management of Arthur Gorrie provides indemnity for the contractor from negligence actions as a consequence of any negligent act, omission on the part of the QCSC.[44] It would have been possible for ACM to rely on this clause by claiming that the QCSC did not adequately monitor its performance, evidenced by a finding of negligence against ACM. On the other hand the contract also provides for indemnity for the QCSC from negligent actions omissions when they are in breach of the contractor's obligations. This purports to include any loss of life or injury to any person.[45]


33. The impact of these cross-indemnity clauses of the kind described above needs legal clarification. The extent of civil liability (and what flows from this responsibility) within a privately contracted centre is still unclear. Traditionally the Crown is vicariously liable for tortious actions including employee's actions where they include operational failures such as inadequate training in suicide prevention and failing to separate and/or monitor a high suicide risk inmate. The legal significance of these indemnity clauses is still unclear after Justice Healy's finings.


34. Justice Healy's judgement also reveals many elements of Arthur Gorrie's environment that touch upon quality of life for inmates and the safety of the institution. For example, apart from finding that custodial officers received inadequate training in suicide management, he noted the centre was understaffed with poor supervision and support for custodial officers.[46] He found there was a lack of experienced correctional staff available. This strongly suggests inadequate financial resources were provided by ACM to operate the centre.


35. Justice Healy also noted that management support and clear policy direction were important to ensure that the centre operated safely. He found:


staffing and administrative policies had resulted in prisoners being disturbed and more unhappy than one would expect because they were not being treated consistently ... through a lack of clear policy guidelines officers gave conflicting orders and directions to inmates and the inmates did not know where they stood. There was inadequate supervision of the inmates because of inadequate staffing levels.[47]
36. Clear policy, adequate training and management support, especially for those performing the custodial function (eg. correctional officers), are important factors influencing the overall quality of a prison regime. In a study of Wolds (the first contracted out remand and reception prison in the UK which opened in 1992) researchers examined institutional, management and staff roles, particularly those of the controller and manager. The research findings identified similar issues and concerns to those found by Justice Healy with regard to Arthur Gorrie. For example, in the area of staff experiences, the researchers found staffing levels were too low at Wolds for custodial officers to perform their role adequately. They note:


Seventy per cent of staff [at Wolds] thought staffing levels were too low to run the prison safely. This tended to undermine the confidence of some Unit Supervisors, making them reluctant to confront difficult prisoners, thereby compounding some of the other control problems which were experienced. In spite of numerous attempts to address the problem of staffing levels by changes in rostering arrangements, staff continued to build up large amounts of time-off-in-lieu ... [this] in conjunction with a number of assaults on staff, led to concerns about personal safety; 68 per cent of staff experiencing such concerns some or all of the time. In addition, over 40 per cent of the staff interviewed felt there should be stricter discipline for prisoners.[48]
37. There were also similarities in inmate management models adopted by the two centres. Management at Wolds (as with Arthur Gorrie) used a direct supervision model. Justice Healy noted that at Arthur Gorrie this required an officer to be in the fish bowl (which was situated in the living unit) with the door open. The English researchers noted that at Wolds the direct supervision model required 'a lower staffing level than would be found in an equivalent public-sector prison.'[49] Like Arthur Gorrie, staff were required to spend 'their entire shift in the unit and were not able to leave at any time, even for meals.'[50] It appears from the English research findings that the direct supervision model was unsuccessful at Wolds, and like Arthur Gorrie, the rationale for its introduction was to cut operational costs and therefore save money for private prison operators.


38. Comparison of the initial training regimes for new correctional officers between Wolds and Arthur Gorrie reveals important similarities. A policy decision (by the private companies) not to recruit custodial officers who had previous public sector experience was taken at both centres. Justice Healy found that this decision meant that Mr Jarvis, on many occasions, was not able to obtain appropriate advice or guidance to deal with difficult inmates during his daily tasks. A similar problem was identified at Wolds:


The initial training courses for Wolds took place in an empty prison involving people the large majority of whom had never worked with offenders before. This lack of experience contributed to many of the problems which emerged, particularly during the early months of the prison's operation and was further compounded by the fact that the initial training courses had given staff an unduly optimistic view of how prisoners would respond and had not adequately prepared them for some of the difficult and unreasonable behaviour which they subsequently encountered. Twenty-one per cent of staff felt that their initial training had not prepared them for the job at all, 25 per cent felt it had prepared them only poorly and 34 per cent only adequately.[51]
39. Important issues emerge from Justice Healy's findings. How were unsafe work practices able to emerge during a period of modernisation and improvement in the Queensland corrections system? Once they did emerge, why were they not rectified by the regulatory agency (the QCSC) through its usual accountability processes? Accountability problems also existed at Borallon at this time. Interviews conducted at Borallon in July 1991 revealed that the QCSC had not developed adequate monitoring of CCA's compliance with its contractual conditions. For example, research revealed that the monitor assigned to Borallon did not have adequate operational expertise to monitor crucial areas of operation. The monitor spent about one hour per week auditing contractual compliance (the rest of the time was spent on QCSC administrative business), a level of auditing which was well below claims made by QCSC officials.[52]


40. It would appear that the problems identified by Justice Healy related to monitoring and accountability rather than an absence of appropriate standards. There were two main sources of accountability to guide ACM during the period of Jarvis' employment.[53] The first were the Mandatory Standards and the second was the contract between the QCSC and ACM. The contract created contractual obligations between the two parties, especially in the area of service provision.


41. In terms of general organisational standards the QCSC Executive had established an important benchmark (in the area of workbased rehabilitation procedures for employees). This was outlined by the QCSC's Executive in November 1992:


Fundamental to this procedure and the whole workplace rehabilitation program is the appointment by local management of rehabilitation coordinators at each correctional centre. The role of the Rehabilitation Coordinator is to coordinate the return of injured workers to meaningful work as soon as possible after injury.[54]
42. No evidence emerged that a Rehabilitation Coordinator was appointed at Arthur Gorrie. In terms of the contract, Mr Jarvis was not privy to that agreement and therefore unable to enforce it, even if it did touch upon matters that related to employee training and conditions. Analysis of the contract reveals that it did not outline the obligations of ACM to its employees but related primarily to the obligations and rights between the QCSC and ACM.[55] It would appear from the evidence to emerge from the trial that ACM was given considerable freedom by the QCSC to operate the facility according to its own standards. On many occasions these standards fell well below the QCSC's policies and practices. It is unclear why such freedom was given to ACM because standards were set, implemented and monitored by the QCSC within the Queensland correctional system for this period. The contract for the management of Arthur Gorrie outlined the company's obligations to provide for basic medical, clothing and hygiene services to inmates. It did not deal with the obligations of ACM towards correctional officers employed at Arthur Gorrie. Because of this omission, the contract is silent on the extent to which the QCSC had an obligation to ensure that ACM provided adequate training for custodial officers.[56]


43. Another possible source of accountability which may touch upon the need to provide training for correction officers would be a contract of employment. No reference is made in the judgement to the existence of a contract of employment between Mr Jarvis and ACM. It is curious why issues such as training and ongoing professional development, which directly related to the quality of the service provided by ACM, were not embodied in a contract of employment.[57] A contract of employment with carefully set out duties and obligations could have provided for minimum training and working entitlements. But even an ineffectual award and the absence of a contract of employment are not decisive on the issue of ACM's obligations to provide a safe system of work. Where there was overlap between ACM's obligations to its employees and its obligations to the QCSC the company was obliged to provide a safe system of work (because of the Mandatory Standards). The QCSC, in its role as the regulatory agency, had responsibility for the implementation of proper standards for all Queensland correctional centres. This view is supported by the contract between ACM and the QCSC which provided for government accreditation of training and instructional courses. For example, clause 5.1.2 of the contract reads:

5.1.2 The Director General shall provide for accreditation of training or instruction courses for Custodians of Prisoners. Such training or instruction courses may be conducted by the Management Company or by an educational institution at the Management Company's expense.[58]



44. ACM was also obliged to employ adequate staff to comply with its obligations under the Agreement. Clause 5.1.4 indicates:

5.1.4 The Management Company shall employ a sufficient number of competent Custodians of Prisoners, medical, paramedical and other staff to enable it to discharge its obligations under this Agreement.[59]



45. Further, the contract makes it clear that ACM employees are not servants of the government.

5.3 Any person employed by the Management Company or by any sub-contractor for the purposes of carrying out the Management Company's obligations under this Agreement shall be deemed not to be an employee of the Director General ... or employed under the Public Sector Management Act ... and no employee of the Management Company or of any sub-contractor shall represent himself as being a servant or agent of the Director General or Her Majesty.[60]



46. The contract requires ACM to comply with the law in force in the jurisdiction in which it operates. Clause 7 refers to further obligations of the Management Company and includes:

7.1 The Management Company and its agents, employees, contractors, and officers shall comply with all Acts and other laws in force in Queensland.[61]



47. The QCSC's Mandatory Standards outlined guidelines for management and operations, security and control, prison management and ancillary services. The QCSC, apart from its power to appoint Official Visitors and independently inspect all Queensland prisons, was also able to issue rules to any correctional centre's General Manager. This was pursuant to Rule 20 of the Corrective Services (Administration) Act 1988 (Qld) which provided for the power to issue rules in respect of '(a) the management, security and good order of prisons and community corrections centres; (b) the safe custody, welfare and privileges of prisoners.' This authority allowed the QCSC to modify ACM's operations at Arthur Gorrie so that it complied with the Mandatory Standards. Crucially, Mandatory Standards cover most of the operational, training and work issues which led to an unsafe system of work at Arthur Gorrie.


48. It emerges from this important case that in several areas, ACM did not comply with the QCSC's Mandatory Standards. For example, the Mandatory Standards required custodial officers to be given sufficient training to handle inmate telephone calls. This included developing proper procedures for the making, monitoring, recording and transferring of telephone calls.


49. The Mandatory Standards also provide for physical security and control of the centre. The intent of Rule 6 which covered this area was to 'protect the community and provide a safe, secure and humane institutional environment.' Justice Healy noted that Mr Jarvis expressed concern to his supervisors about 'the keys being in his possession when he was moving amongst the prisoners.'[62] Other evidence indicated that the inmates were aware that Mr Jarvis had a full set of keys for the prison. Mandatory Standards required that the General Manager's Rules, at a minimum, include procedures covering key control and secure storage of all keys, including restricted access and procedures for the handling and operation of keys. The evidence to emerge is highly suggestive that this rule was breached by ACM.


50. Finally, evidence suggested that Mr Jarvis was 'never formally instructed as to how to muster the prisoners.'[63] The Mandatory Standards provide that procedures should be in place outlining the time, procedure and frequency of prisoner musters.


Conclusion

51. Mention has already been made of deficiencies in the industrial agreement, particularly in terms of providing for minimum standards of training for Mr Jarvis. Despite this, ACM had well publicised industrial relations policies covering the period of Jarvis' employment. For example, two senior ACM managers indicated:


ACM's progressive human resource policies and procedures have been instrumental in creating an organisational culture that encourages team work, an emphasis on customer service and a commitment to the company's philosophy. The underlying principles are consistency, fairness, equity and accountability. ACM human resource policies are regarded by ACM managers and employees as both innovative and practical. These policies are a combination of 'best practices' from both cultures, the US and Australia.[64]
52. A letter from the Chief Executive Officer of ACM (addressed to new employees) further outlined ACM's employment philosophy. After welcoming the employee, the letter continues, 'You can expect to be provided with comprehensive training and guidance designed to enhance your career goals and job satisfaction ... The most important assets of any service organisation are its employees.'[65]


53. These policies contrast with Justice Healy's findings that ACM was negligent by providing an unsafe work environment. The reader may ask, how is it possible for ACM to have introduced the previously described human resource policies and for Justice Healy to conclude that Mr Jarvis' work environment led to the plaintiff suffering 'a significant permanent partial disability' (post traumatic stress disorder)?[66] Justice Healy found that 'the management of the defendant company had actual knowledge of measures which could have helped the plaintiff in early 1992 but did nothing to put them in place.'[67] He found that the risks to people in:


high stress occupations required debriefing and follow up counselling ... [and that] in 1991 ... [best practice] models were already in existence in Melbourne, Victoria and South Australia. These models which were available could have been used at the Arthur Gorrie Correctional Institution in early 1992 ... [ACM's management] knew about these systems and it would have been a simple matter for the management to get in touch with a psychiatrist and obtain advice as to how such a system could be put in place either before or at the time the correctional centre opened.[68]
54. Justice Healy awarded damages of $197, 500 which included the components pain and suffering, loss of amenities, past economic loss, future economic loss and future medical expenses.


55. The finding of negligence against ACM have broader implications than providing a private law remedy to Mr Jarvis. The findings are noteworthy because the rationale used by the QCSC for introducing private contract management was to increase efficiency and improvement in service delivery. In essence, to improve the quality of correctional services in Queensland. Justice Healy's findings suggest that the quality of the environment at Arthur Gorrie was poor from both an employee's and inmate's perspectives. In terms of monitoring and accountability, it is unclear why the QCSC did not take steps to rectify or modify practices at Arthur Gorrie. Given the serious nature of the problems it seems highly unlikely that the QCSC was unaware of the situation. The QCSC's Annual Report in 1993 notes an 'upturn in grievances was expected as a result of the opening of the Arthur Gorrie Centre, particularly in the first few months of operation'.[69] According to the Report, 'the areas of major concern were, delays in visitor access, lack of visiting time, and unsuitability of visiting days.'[70] The Report notes that 'management responded to these concerns and changes were developed in consultation with all relevant parties.'[71]


56. There is no reference in the Annual Report to any of the matters raised in Justice Healy's judgement. The system of work at Arthur Gorrie is closely related to service delivery in key operational areas. The problems identified by Justice Healy were more significant than delays in visitor access and unsuitable visiting days. Remarkably, the same Annual Report indicated that both privately contracted centres (Arthur Gorrie and Borallon) were audited according to the QCSC's Mandatory Standards. The QCSC established a Directorate of Audit and Investigations to enhance its audit program during the same time frame. The Annual Report notes that the audit process involved:


a program of observation, compliance testing, verification and review. Operations are documented on a per audit basis and a report regarding compliance is provided to the contracted party either verifying satisfactory performance or detailing areas that require remedial action.[72]
57. According to an internal circular signed by the QCSC Director-General, the Audit and Investigations section had a contract audit sub-section:


responsible to ensure that private companies and organisations subject to contractual arrangements with the QCSC comply with the conditions of contract and the mandatory standards of performance. Contract audits are conducted on a regular, but random basis and encompass:

• verification of agreement requirements;
• compliance checks of all areas of operation and management under the contracts; and
• reporting to contractors and the QCSC on results.[73]
58. At a minimum, the scope of the operational audits would have covered private contractor's 'compliance with relevant legislation, Commissions Rules and other prescribed procedures and directives and [also involved] review [of] economy and efficiency in the use of resources'.[74] Reports from audits were to be provided to the Director-General including 'suggested actions to remedy deficiencies in security, policies, practices and procedures.'[75] The Director-General indicates that 'the Director-Audit and Investigations shall have unfettered access to information, data, equipment, establishments and personnel necessary to discharge [these] responsibilities.'[76]


59. Contradictions between the evidence provided to Justice Healy at the trial about the work environment at Arthur Gorrie and the reports of the QCSC Audit Division raise serious doubts about the integrity and comprehensive of the QCSC's audit process for this period. Given Justice Healy's findings of negligence, it would appear that a new approach to auditing is warranted.[77]


60. Justice Healy makes no reference to the monitoring role of the QCSC in his judgement. This is unfortunate because the QCSC was legally responsible for administering corrective services in Queensland even though the contract purports to exclude it from vicarious liability for negligence on the part of a contractor. As has been stressed, such cross-indemnity clauses do not necessarily exclude the QCSC from legal responsibility to ensure that ACM complies with the Mandatory Standards and other legislative requirements. The issue of the unsafe work practices is closely linked to whether ACM met the Mandatory Standards set by the QCSC.


61. At the time of Justice Healy's findings, the QCSC had been focusing on workplace health and safety as important issues in a general review of operational procedures and policies. The 1993 Annual Report notes that 'workplace health and safety continues to be a major focal issue for all sections of the Commission.'[78] The QCSC had implemented a procedure for managing traumatic events which provided:


a process for managing staff who have been in direct or indirect contact with a traumatic event in the workplace. This procedure ensures that all employees involved in a traumatic event receive Critical Incident Stress Debriefing at the appropriate timings thus controlling and minimising the stress associated with a traumatic event on the individual.[79]
62. The need for the QCSC to take action (as part of its normal monitoring process) was even more important in this case because the private law remedy of negligence took three years to finalise. The action by Mr Jarvis was limited to seeking a remedy for an unsafe system of work in his capacity as an employee of ACM. Questions remain about how many other employees were subjected to unsafe work practices and how many work injuries and emotional difficulties were suffered as a result of the working environment at Arthur Gorrie during this period. Deficiencies identified in this judgement were a consequence of policy and resource allocation decisions made by ACM's managers. It was within the authority of the QCSC to change this and indeed, it was the QCSC's obligation to do so.[80]


63. It would appear from these events that a re-assessment of accountability and monitoring mechanisms is necessary. In the final section of this note some suggestions are made along these lines particularly in view of corporatisation, a recently introduced policy in Queensland corrections.


A Proposed Solution: Is There a Need for a New Monitoring Agency?

64. Justice Healy's findings lead to the conclusion that significant deficiencies existed with the monitoring and accountability process in this instance. It is difficult without further research to identify how wide spread these deficiencies are, or whether they also exist in relation to public corrections centres. What are some possible solutions to inadequate and irregular monitoring identified in this judgement? Under monitoring arrangements currently in place, it is the responsibility of the QCSC to monitor standards and assess performance against the QCSC's Mandatory Standards through the use of a contract monitor.[81] It would appear from this case that the QCSC was unable (or unwilling) to enforce standards at Arthur Gorrie which applied to the Queensland corrections system. This would suggest the need for an independent monitoring agency entrusted with the role of monitoring all Queensland prisons according to system wide standards.


65. It was expected that corporatisation would be finalised by July 1, 1997. At the time of writing this paper, QCORR was established by name and the formal legislative amendments were yet to be passed by parliament. The QCSC's internal newsletter noted:


The rationale for corporatisation is to set up a separate entity QCORR which will take over all of the Commission's service delivery functions including;

• community corrections centres
• custodial correctional centres (and WORC schemes)
• supervision of community based orders
• juvenile detention centres.[82]
66. QCORR will become a service provider, a government owned corporation established under the Government Owned Corporations Act 1993 ( Qld).[83] It will compete with the private sector for contracts to manage correctional centres. Part of the rationale for this change is to ensure that the Queensland Government complies with National Competition policy, thus ensuring competitive neutrality. The QCSC will still exist (as a purchaser of corrective services). It will call for tenders, develop policy, set standards and monitor the performance of QCORR and privately contracted centres.[84]


67. It is unclear what this transition will mean in terms of monitoring and accountability. The separation of QCORR from the QCSC provides an opportunity for the QCSC to be more independent in its monitoring role. The capacity of the QCSC to perform this role will depend upon adequate resources and expertise being provided by government. Legislative arrangements and organisational structures as a result of this process are still being finalised. In discussion with the author the Deputy Director-General of the QCSC indicated on November 21, 1997 that corporatisation will accelerate the process of private sector involvement in inmate industries and there will be increased opportunities for the private sector to perform what has been traditionally regarded as the QCSC's core functions.


68. The commercialisation of public service provision coupled with private sector involvement underlies the importance of having an effective and comprehensive monitoring process. Under the new arrangements, contracted and QCORR centres will have contracts or stand alone service agreements as they will be known for QCORR facilities. In addition, QCORR is exploring contracting out support functions such as corporate services. In such an environment, effective audit and evaluation becomes paramount. It is unclear how effective the new QCSC structure will be in improving compliance with mandatory standards. Policy discussions with senior managers about the new corporatised structure indicates that within the policy and planning division, the development of standards by a separate audit and evaluation section (responsible for contract monitoring, investigations and program evaluation) is receiving serious consideration. The success of this arrangement will need to be independently evaluated against minimum standards.


69. It is important for a monitoring agency to be independent from service providers both operationally and symbolically. The difficulty with the QCSC having a monitoring body or contract auditors within its policy and planning division (even under the corporatisation model) is that monitors can be subjected to 'internal pressure' from within the QCSC by managers. This increases the potential for the integrity of the monitoring process to be compromised. Many of the senior executives within QCORR were previously from the QCSC, thus the independence of the QCSC from QCORR may in practice be blurred.


70. An ideal monitoring model would be to establish independent monitoring process outside the administrative (or bureaucratic) channels of either QCORR, the QCSC or private companies. Despite corporatisation the QCSC still retains an interest in the success of private sector involvement and as the Jarvis case shows, the QCSC was not able to adequately monitor ACM's performance. A monitoring agency should be seen to be organisationally independent from QCORR, the QCSC and private companies. Ideally, it would be funded as an independent statutory authority and created for the specific purpose of monitoring the provision of corrective services in Queensland. This would leave the policy and planning role of the QCSC intact but remove its monitoring role. It would extinguish the criticism that the QCSC's independence is being eroded as it begins to operate as a business entity.


71. The deficiencies identified by Justice Healy strongly support the need to establish an independent monitoring body. Such a body needs to accept responsibility for rectifying the problems that have been identified in this important case and provide clear avenues to receive complaints and identify responsibility for the types of issues raised in this judgement. Whilst the problems with an unsafe work environment have their genus in the private law rights of Mr Jarvis, the implications of the findings are more widespread. The monitoring agency would need to receive and be able to resolve complaints from what the QCSC currently call 'stakeholders' (those who use the services of the QCSC, including employees of private companies and QCORR). The development of an independent monitoring agency along the lines suggested would create the structural mechanisms facilitating greater external accountability. Whether there can be a sustained improvement in identifying, monitoring and rectifying breaches and setting correctional standards remains to be seen. The introduction of an independent monitoring agency will increase the opportunity to improve the quality of correctional services in Queensland into the 21st century.

Notes

[1] No. 633 of 1994, unreported, (Healy Q.C., D.C.J), District Court, Brisbane. Judgement was delivered on July 5, 1996. This is a revised version of a paper presented to the Australian Institute of Criminology conference entitled, 'Privatisation and Public Policy: A Correctional Case Study', Hotel Sofitel, Melbourne, June 16-17, 1997. At the time of writing the author was a Legal Official Visitor for the Queensland Corrective Services Commission and also a consultant criminologist to the Queensland Community Corrections Board. The views expressed in this paper are those of the author and do not necessarily reflect those of the Queensland Corrective Services Commission or the Queensland Community Corrections Board.


[2] Methods for micro-economic reform have become a national issue. In the 1996 federal budget, emphasis was placed upon 'improving the efficiency of government service delivery, both in terms of the Budget's medium term strategy of deficit reduction and for the long term.' From this, the Federal Minister for Finance announced after an Industry Commission's Report, Competitive Tendering and Contracting by Public Sector Agencies, 'that public service managers would be "required to systematically review their responsibilities and assess the cost and effectiveness of these activities". This review process will include consideration of whether the use of competitive tendering and contracting or other performance improvement tools would enable government services to be delivered better.' Administrative Review Council 1997, The Contracting Out of Government Services, Issues Paper, February, AGPS, Canberra. See pp. 2-5 for a description of this trend. See also Industry Commission Report No. 48, 1996, Competitive Tendering and Contracting by Public Sector Agencies, AGPS, Melbourne.

[3] See Harding, R. 1997, Private Prisons and Public Accountability, Open University Press, Buckingham. In absolute numbers this high percentage for Australia 'only amounts to 3600 prisoners - a drop in the bucket by USA standards.' (Harding 1997, p. 5) For an overview of the increase in the number of private prisons in the US, Australia, England and Wales from 1993-1997, see pp. 4-7.

[4] Diplock, D. & Calabrese, W. 1994, 'Privatisation and Industrial Relations: ACM's experience', in Private Prisons and Police Recent Australian Trends, (ed) P. Moyle, Pluto Press, Sydney, p. 114. According to Diplock, then General Manager, Human Resources of ACM and Calabrese, then Chief Executive Officer of ACM , 'Wackenhut Corrections Corporation (WCC) provides securities services around the world and has over 40,000 employees and 125 offices in the United States and some 40 countries. WCC currently manages nine correctional centres in the US and has recently been awarded a contract with its joint venture partner, Serco, to manage an 800 bed remand and reception centre in Doncaster, England.' (p. 107). ACM became a wholly owned subsidiary of WCC on January 28, 1994. See also p. 108 for detail about the Company's structure, including parent and operating companies.

[5] Queensland Corrective Services Commission 1993, Annual Report, Government Printer, Brisbane, p. 60.

[6] See p. 20 of the judgement.

[7] See p. 2 of the judgement.

[8] See p. 3 of the judgement.

[9] See p. 3 of the judgement.

[10] See p. 3 of the judgement.

[11] See p. 3 of the judgement.

[12] See p. 4 of the judgement.

[13] See p. 2 of the judgement.

[14] See pp. 4-5 of the judgement.

[15] See p. 5 of the judgement.

[16] See p. 5 of the judgement.

[17] See p. 5 of the judgement.

[18] See p. 6 of the judgement.

[19] See pp. 6-7 of the judgement.

[20] See p. 7 of the judgement.

[21] See p. 13 of the judgement. He affirmed Vozza v Tooth & Co [1964] HCA 29; (1964-65) 112 CLR 316 at 318 and Parris v Stepney Bayo Council [1950] UKHL 3; [1951] AC 367 especially Lord Moreton at 385.

[22] See p. 18 of the judgement. See General Cleaning Contractors Ltd v Christmas [1953] AC 180 especially Lord Tucker at 195.

[23] See Neall v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1962-63) 108 CLR 362 at 370.

[24] See pp. 15-16 of the judgement. Evidence from Jarvis about unsatisfactory work conditions were corroborated by other prison officers who were called as witnesses.

[25] See pp. 16-17 of the judgement. Medical evidence presented at the trial by Dr Unwin suggested that critical incidence stress debriefing is always recommended because it does in some cases have a preventative effect.

[26] A fourth incident occurred when an inmate appeared to suffer a heart attack. Mr Jarvis called immediately for medical assistance. The medical team did not arrive for at least 40 minutes and this upset Mr Jarvis. (See p. 12 of the judgement.)

[27] See p. 7 of the judgement.

[28] See p. 8 of the judgement.

[29] A slashing typically involves a prisoner using a razor blade to cut his/her wrists and/or throat.

[30] See p. 9 of the judgement.

[31] See p. 9 of the judgement.

[32] See p. 10 of the judgement.

[33] See p. 10 of the judgement.

[34] See p. 10 of the judgement.

[35] See p. 10 of the judgement.

[36] See p. 11 of the judgement.

[37] From Private Prison Watch, [e-mail], February 4, 1998, p. 4.

[38] Correctional authorities have a duty of care to inmates to take reasonable steps to protect their safety. See Sandery v South Australia (1987) 48 SASR 500 although contrast this with Justice Priestly's comments in Thorne v Corrective Services Commission of NSW unreported, NSW Court of Appeal, December 29, 1989 where a plaintiff's son, an inmate, was beaten to death by an inmate with a history of violent offences. Justice Priestly noted, 'For prisoners in some of the state's gaols life is very rough and tough indeed and occasionally very violent ... although H had a history of violent crimes and had violently attacked another prisoner five years before he killed the plaintiff's son, this did not mean that the Commission knew that H was likely to attack other prisoners.' Similar developments have occurred in England where it has been found that convicted prisoners 'retain all civil rights which are not taken away expressly or by implication.' See Lord Wilberforce in Raymond v Honey (1982) 1 All ER 756. See also Middleweek v Chief Constable of Merseyside (Note) (1990) 3 All ER 283 and R v Deputy Governor of Parkhurst Prison ex parte Hague and Weldon v Home Office (1992) 1 AC 58. For a description of English prison rules see Prison Reform Trust 1993, A Working Guide Prison Rules, Prison Reform Trust, London and O'Neill and Handley, Retreat From Injustice , see especially pp. 167-175.

[39] 1991, Queensland Government Printer, Brisbane.

[40] See pp. 2-3 of the judgement.

[41] See Australian Institute of Criminology 1992-1995, Deaths in Custody, Nos. 4-11. Dalton and McDonald reveal for the period July 1, 1994 to June 30, 1995 'hanging was the most frequent cause of death in prison, accounting for 27 (or 51 per cent) of the 53 deaths for which information on the cause of death is currently available. It should be noted that 29 (54 per cent) of the deaths for which information on the manner of death is available were self-inflicted.' (Dalton, V. & McDonald, D. 1995, Deaths in Custody Australia', No. 11 Australian Deaths in Custody & Custody-related Police Operations, 1994-1995, Australian Institute of Criminology, p. 12.

[42] Dalton & McDonald 1995 , p. 13.

[43] QCSC 1995, Annual Report, Queensland Government Printer, Brisbane, p. 68.

[44] See clause 17.2 p. 20 of the contracts of 1992 and 1997.

[45] See clause 17.1, pp. 19-20, of the contracts of 1992 and 1997.

[46] There has been an increase in the US in civil liability suits against criminal justice practitioners. Employers in the American criminal justice system would appear to have a more clearly identified obligation to provide proper supervision and training of employees. Barrineau notes, 'failure to properly supervise employees can bring on a law suit for negligent supervision.' Barrineau, H. E. 1994, Civil Liability in Criminal Justice, Anderson Publishing Co., Cincinnati, p. 58. See Marusa v District of Columbia [1973] USCADC 380; 484 F 2d 828 (DC Cir 1973) and Brandon v Holt 69 US 464 (1985). Regulatory agencies are obliged to ensure that training is adequate for an employee to carry out tasks they are required to perform. 'Failure to do so subjects the administrator or supervisor and the local unit of government to possible liability.' (Barrineau 1994, p. 58) See Owens v Haas [1979] USCA2 599; 601 F 2d 1242 (2d Cir 1979). 'In Owens v Haas, the court stated that gross negligence or a "deliberate indifference" to training and supervision would be a proper basis for liability.' Barrineau 1994, pp. 58-59) See also Dewell v Lawson [1974] USCA10 4; 489 F 2d 877 (10th Cir 1974) where the 'court held that an alleged failure to establish procedures and to train personnel to protect prisoners from medical injuries due to inattention established a cause of action.' Barrineau 1994, p. 59.

[47] See p. 15 of the judgement.

[48] Bottomley, K., James, A., Clare, E. & Liebling, A. 1997, 'Monitoring and Evaluation of Wolds Remand Prison and Comparisons with Public-Sector Prisons, in Particular HMP Woodhill', A Report for the Home Office, Research and Statistics Directorate, London, p. 31.

[49] Bottomley and others 1997, p. 30.

[50] Bottomley and others 1997, p. 30.

[51] Bottomley and others 1997, pp. 30-31.

[52] During this period, a lack of adequate monitoring by the QCSC spilt over to influence the QCSC's auditing function. Both ACM and Corrections Corporation of Australia (CCA) claimed 'commercial confidentiality' in relation to their contracts, operational standards and monitoring data. In 1991 the General Manager of Borallon, indicated that he was not aware of the extent of liability for CCA when inmates were injured. He further noted, 'you would have to ask the Commission [QCSC] that. I don't know if it would apply.' Moyle, P. 1992, 'Privatising Prisons: The Underlying Issues', Alternative Law Journal, vol. 17, no. 3, p. 118. For a description of the influence of commercial confidentiality on external accountability during 1991-1993, see Moyle, P. 1997, Chapter Seven, 'Researching Borallon and Lotus Glen within the Queensland Correctional System', Ph D thesis. Harding notes about monitoring during this period that it was 'processual and formulaic rather than qualitative or evaluative. Boxes were ticked, very brief observations made, and the six mini-reports in effect stapled together into an audit report. No overview was offered, no 'feel' for how the institution actually works was detectable.' Harding 1997, p. 43.

[53] Note also the discussion earlier about Mandatory Standards, particularly in relation to psychological services for staff and inmates.

[54] Anderson, C. 1994, 'Workplace based rehabilitation', Communique, QCSC, February, p. 4.

[55] The contract provided for a prohibition on ACM delegating any of its functions to sub-contractors. See Clause 5.1.3 (p. 7) of the Deed of Agreement between the Minister for Justice (NSW) and ACM dated August 7 1991.

[56] See also ACM's operating contract for Junee Correctional Centre in NSW. The then Chief Executive Officer of ACM indicated in discussions with the author the contract for Junee and Arthur Gorrie were developed from a pro-forma contract with minor modifications for local conditions.

[57] An industrial agreement was in place between ACM and the Federated Miscellaneous Worker's Union of Australia (Queensland Branch). It was registered pursuant to the Industrial Relations Act 1990-1991 (Qld) in May 1991. Clause 6.3 in the agreement refers to a commitment to training and careers in very general terms; 'The parties commit themselves to continuing and upgrading the training provided to employees. It is agreed that the parties will co-operated in ensuring that it is maintained and improved. This training will form the basis of an enhanced career structure in the industry.'

[58] p. 7 of Agreement.

[59] pp. 7-8 of Agreement.

[60] p. 8 of Agreement.

[61] p. 9 of Agreement. The contract also indemnifies the government against negligent actions by ACM. See Clause 16 (pp. 17-18).

[62] See p. 7 of the judgement.

[63] See p. 7 of the judgement.

[64] Diplock & Calabrese 1994, p. 115.

[65] Diplock & Calabrese 1994, p. 117. In December 1992, ACM claimed they were market leaders providing excellent employment opportunities for its staff. At an international conference examining private sector involvement in the criminal justice system in Australasia the General Manager of Business Development (ACM) claimed that when negotiating to operate its Australian contracts the company adopted the principle of providing, 'A level of amenity for employees comparable to community expectations of regular businesses. A safe working environment for staff' and that their centres be 'safe living environments'. Champion, R. & Curnow, W. 1994, 'Corrections Contract Management in New South Wales: The Junee Experience', in (eds) D. Biles & J. Vernon, Private Sector and Community Involvement in the Criminal Justice System, Conference Proceedings, No. 23, Australian Institute of Criminology, Canberra. At the same conference, ACM's Chief Executive Officer indicated that Arthur Gorrie had a number of advantages over public sector correctional centres in the quality of service it provided including more modern facilities, different work rules and procedures and fresh and eager new staff. Calabrese, W. 1994, 'Privatised Corrections: United States, Australia and New Zealand', in (eds) D. Biles & J. Vernon, Private Sector and Community Involvement in the Criminal Justice System, Conference Proceedings, No. 23, Australian Institute of Criminology, Canberra, p. 90.

[66] See p. 20 of the judgement.

[67] See p. 19 of the judgement.

[68] See p. 19 of the judgement.

[69] QCSC 1993, Annual Report, Queensland Government Printer, Brisbane, p. 59.

[70] QCSC 1993, p. 59.

[71] QCSC 1993, p. 59.

[72] QCSC 1993, p. 60.

[73] Circular dated November 30, 1992, p. 2.

[74] Internal QCSC circular dated November 30, 1992, p. 2.

[75] Internal QCSC circular dated November 30, 1992, p. 2.

[76] Internal QCSC circular dated November 30, 1992, p. 2.

[77] See final section A Proposed Solution: A Need for a New Monitoring Agency.

[78] QCSC 1993, p. 65.

[79] QCSC 1993, p. 65.

[80] Justice Healy noted that ACM put in place a debriefing system on June 1, 1993 and introduced the possibility of follow-up counselling. It was not until July 1994 that ACM 'put in place a system which was fully in accordance with best practice at the time'. (See p. 19 of the judgement) It is unclear from the judgement whether the QCSC or ACM were the catalysts for this.

[81] See generally the QCSC Contract for the Private Operation and Management of Remand and Reception Centre, Brisbane, 1992, clauses 18-20 covering 'Appointment of Contract Monitor, the Right to Examine Records and Access to Centre', pp. 21-23 .

[82] QCSC 1977, Communique, February, p. 3.

[83] See also the Government Owned Corporations (Queensland Corrections) Regulations 1997 (Qld).

[84] For a useful description of the process of competitive tendering and its rationale, see 'Reforms in Governmental Service Provision, Case Studies: Correctional Services in Queensland', Steering Committee for the Review of Commonwealth/State Service Provision, 1997, Chapter 4, AGPS, Canberra, pp. 71-98. See also Macionis, S. 1997, 'Purchaser and Provider: The Queensland Experience', paper presented to the Australian Institute of Criminology Conference 'Privatisation and Public Policy Conference: Correctional Case Study', June 16-17, Melbourne, pp. 7-8.

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