Margalit, Michel --- "The Metropolitan Remand Centre riot: Where duties collide" [2018] PrecedentAULA 48; (2018) 147 Precedent 42

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THE METROPOLITAN REMAND CENTRE RIOT

WHERE DUTIES COLLIDE

By Michel Margalit

The largest riot in the history of Corrections Victoria erupted at the Metropolitan Remand Centre (MRC) on 30 June 2015.^[1] The riot brought into focus the tension between the duties owed by the state to prison employees, as opposed to the duties owed to prisoners, and how far those duties extend.

CIRCUMSTANCES LEADING TO THE RIOT

The riot involved 400 prisoners and was sparked by the Victorian Coalition Government’s decision to ban smoking in prisons. The Coalition Government enacted the Corrections Amendment (Smoke-Free Prisons) Act 2014 (Vic) which included the prohibition of smoking in prisons in Victoria from 1 July 2015. The implementation date was intentionally set in the future so as to provide Corrections Victoria with adequate time to roll out programs to assist and support prisoners to quit smoking.^[2]

At the time the Bill was introduced in Parliament, Labor MP Jane Garrett warned that the proposed legislation was ‘...long on rhetoric and short on implementation’.^[3] In debating the Bill, she sought a ‘...comprehensive plan for the way prisoners will be supported to quit, how staff will be looked after when there is an increase in agitation amongst the prison population when they are unable to access cigarettes...’^[4]

In preparation for the smoking ban Corrections Victoria implemented the ‘Smoke Free Prisons Project Plan’ and the MRC ‘Site Implementation Plan’.^[5] However, these programs did not adequately address the unique requirements of a remand centre where prisoners are typically housed for a shorter period. The Independent Report^[6] following the riot found that these plans did not have the desired effect as remand prisoners ‘...had less time to prepare for the smoking ban, meaning they felt its impact more intensely and immediately’.^[7]

In the context of already heightened tensions caused by the approaching smoking ban, the MRC prematurely ran out of tobacco days ahead of the implementation date, later described as ‘poor planning’ by the Independent Report.^[8] This triggered passive protests on two occasions with prisoners chanting ‘we want Ox’ (tobacco).

Concurrently, prisoners wrote to the prison seeking, amongst other things, legislative amendment permitting smoking 10 metres from the remand buildings. The letter warned that the prisoners ought to be taken seriously and pointed to further protests.^[9]

Increasing tensions were compounded by overcrowding at the MRC. The MRC had been purpose built to house 613 inmates, but at the time of the riot housed 918 inmates. Some years prior to the riot the Victorian Auditor-General published the Prison Capacity Planning report which connected prisoner overcrowding with a doubling of the rate of serious incidents per prisoner.^[10] After the riot the Independent Report found that overcrowding at the MRC contributed to the tensions due to the reduced recreational space available to prisoners and limited prisoners’ access to visitation and prison programs.^[11]

THE RIOT AND THE RESPONSE

On 30 June 2015 prisoners rioted for 15 hours. Prisoners had ‘unfettered access’ to many parts of the MRC and were easily able to push over wire fences, which facilitated the riot.^[12] Some prisoners lit fires, brandished makeshift weapons, threw rocks and used prison vehicles to breach fences and gates.

In examining the response of Corrections Victoria to the riot, the Independent Report found that its ‘combat’ philosophy hindered its ability to promptly secure and contain the riot.^[13] This combat philosophy was focused on quickly resolving the riot so as to limit injury to both prisoners and staff, and to minimise property damage. However, due to the widespread rioting and frequent calls for assistance, Corrections Victoria was unable to take control of the prison and, on multiple occasions, lost control of areas after having secured them.

In contrast, the philosophy preferred by Victoria Police is that of containment. This approach seeks to simply contain an incident and stop the aggressors from advancing their pursuit. Interest is eventually lost and the aggressors become disengaged.^[14] In describing this approach, the Deputy Police Commander stated that ‘time is your friend’.^[15] The Independent Report found that the containment philosophy may have been more effective in preventing the riot from escalating.^[16]

The Independent Report found that Corrections Victoria could have been better prepared to respond to such an incident. The identified failings included:

1. the delay in receiving armoured vehicles caused by ‘unnecessarily complex approval processes’;^[17]

2. lack of adequate staff with specialised riot training;^[18]

3. neglecting to call in additional off duty staff members who were available;^[19]

4. adopting an overly inward focus, preventing the proper briefing of external organisations; and^[20]

5. confusion arising due to the lack of a formal handover process between Corrections Victoria and external organisations.^[21]

WORKSAFE CHARGES

WorkSafe charged the Department of Justice for failing in its duty to employees to provide and maintain a work environment that is safe and without risks to health.^[22] The Department of Justice pleaded guilty to this charge and, on 15 December 2017, Magistrate Popovic ordered that it pay a fine of $300,000 plus the prosecution’s costs of $14,215.

WorkSafe’s position was that the risk of harm to employees could have been reduced by having available additional Security and Emergency Services Group members on stand-by to be deployed to the MRC in the days leading up to the ban in the event of occupational violence occurring.^[23]

The Independent Report illustrates the risk of harm to employees posed by the riot. For instance, staff were unable to take breaks or be relieved^[24] and some employees were asked to arm themselves with combat equipment despite never having received relevant training.^[25] This was all in the context of violent threats by prisoners such as ‘You better run dogs, cause you are dead.’^[26]

COST

The property damage caused by the riot was estimated at $12 million.^[27] However, the drain on public resources far exceeded this figure, with some commentators assessing the total cost of the riot at more than $100 million.^[28]

The costs associated with the WorkSafe charges go well beyond the fine and prosecutions costs. In November 2017 the Corrections Minister, Gayle Tierney, confirmed that the defence’s cost incurred to date amounted to $156,136.^[29] It can only be assumed that the legal costs of WorkSafe in investigating and prosecuting the charges were as much or more than that of the defence.

The Community and Public Sector Union estimates that 36 prison officers were injured in the riot and, as at December 2017, many remained off work.^[30] No doubt the cost of the riot to the WorkCover scheme has been significant, in paying both statutory and common law compensation to injured workers. Additional expenses have been incurred through the associated legal costs of the Victorian WorkCover Authority, and those costs paid by the Victorian WorkCover Authority to the legal representatives of the workers. Further costs associated with compensation are likely to be incurred into the future.

Shortly after the riot, Victoria Police established ‘Taskforce Gallium’ to investigate the riot in conjunction with Corrections Victoria and the Office of Public Prosecutions. The state undertook the painstaking task of identifying and charging 104 inmates with offences including charges of riot and sabotage.^[31] The 2015 – 2016 Victoria Police Annual Report states that the evidence in these matters was so voluminous that it ‘...required the development of a fully interactive electronic brief of evidence’.^[32] The court system then had to undertake the time consuming and costly task of hearing the charges of the accused persons.

There was also the cost of dealing with complaints by prisoners to the Victorian Ombudsman and Health Services Commissioner following the riot.

The drain on public resources is particularly concerning given the failures of Corrections Victoria, as set out by the WorkSafe prosecution and the Independent Report.

EFFICACY OF THE SMOKING BAN

At the time the Bill was introduced to Parliament, 85 per cent of Australian prisoners were smokers.^[33] The purpose of the Bill was altruistic in its ambition, primarily aimed at occupational health and safety. The Honourable Rich-Phillips, Assistant Treasurer, stated in the Second Reading speech that:

‘Smoking is the largest contributor to preventable death in Victoria and increases the risk of developing a number of chronic health conditions. A total smoking ban in Victorian prisons will reduce the health risks for prisoners and prison staff associated with smoking and will eliminate the risk to prisoners and prison staff of exposure to second-hand smoke.’^[34]

The government sought to create consistency with public attitudes and the incremental ban of smoking in public places that had occurred in Victoria since 2012. It focused on rehabilitation, with the aim that ‘...more prisoners complete their sentence and return to the community smoke free.’^[35]

Research into this approach, however, is not extensive with one health researcher stating:

‘Qualitative research into smoking cessation in prisons is limited and it is not understood how some successfully quit smoking in custody while others relapse. It was unknown what effect the transition of prisons from a pro-smoking culture to a smoke-free environment might have on the smoking behaviour of prisoners.’^[36]

Further, it is apparent that prisoners do not necessarily stop smoking despite a blanket ban approach.^[37]

A study into the 2014 smoking ban in Queensland prisons examined the negative health consequences that resulted.^[38] While some prisoners successfully quit, and some even took up fitness as a substitute for smoking, this was not the case for all. Some prisoners took to setting nicotine patches on fire and directly inhaling the smoke, while some others made makeshift tobacco using tea leaves infused with a substance taken from the nicotine patch. It is not known what the health consequences of these practices are, but the study reflected that, ‘Prisoners reported anecdotal evidence of their peers suffering various side-effects and attributed symptoms such as nose-bleeds, seizures and strokes to the use of tea-bacco or ignited patches.’^[39]

Increased boredom was also reported in the 2014 study, with some prisoners substituting smoking with food and therefore gaining weight.

The effect of smoking and its ban extends beyond physical effects. In the 2014 study, ‘Participants justified smoking as an acceptable and integral part of prison life and as a basic human right... citing its use as both an economic and social currency and its stress relieving properties.’^[40]

DUTY v DUTY v RIGHTS

The decision to ban smoking in prisons raises interesting questions of rights, duties, the purpose of the prison system and how far the aim to rehabilitate should extend.

The state government has duties pursuant to the Corrections Act 1986 (Vic) to ensure the welfare and safe custody of prisoners^[41] and to maintain the security and good order of the prison.^[42]

The state government also owes a non-delegable duty of care to its employees, the prison officers. These duties are contained both in common law^[43] and in statute.^[44]

Inherent in the role of a prison officer is a risk to one’s safety in dealing with offenders. When deciding whether the prison authority had breached its duty of care to its employees, consideration must be given to whether exposing its employees to risk was necessary and whether the risk was within the control of the prison authority.

When drafting the Bill and designing its implementation, the state government was charged with the task of balancing these duties and considerations. Given the lack of established research into the efficacy of a smoking ban, coupled with the grave consequences that a failed implementation of the smoking ban posed, it is arguable that an approach of ‘absolute necessity’ should have been applied when enacting legislative reform.

In commenting on the ban, Associate Professor Bronwyn Naylor noted that there are:

‘... rights to equal treatment, rights to privacy, rights to family, rights to not having your home life arbitrarily interfered with. And I think there's at least a way of thinking about this issue of saying: Is it necessary to ban smoking in order to balance the rights that we're talking about: the rights to a safe work environment for the staff, the safety of other prisoners in terms of second-hand smoke and so on: is an absolute ban really necessary?’^[45]

The ban of smoking in prisons not only sought to protect employees, but also prisoners from their own wilfully self-destructive actions. The state as an employer has a positive duty to protect its employees from harm and this duty should not be eroded in pursuit of protecting prisoners from their own behaviour.

The inmates themselves proposed to prison authorities the alternative solution of permitting smoking 10 metres from prison buildings. This alternative would have, for the most part, met the state’s positive duty to protect its employees from the harm posed by cigarette smoke, without exposing employees to the risk brought about by implementing a complete ban.

Further, the solution proposed by inmates would have more realistically brought the prison into line with the community, where smoking is permitted in some public places. The smoking ban in prisons effectively imposed harsher restrictions on liberty in the name of care than in the free community.

In the 2014 study discussed above, participants considered smoking to be a basic human right.^[46] While it is clear that smoking in itself does not constitute a human right under the Charter of Human Rights and Responsibilities Act 2006 (Vic), prisoners do have the right to humane treatment when deprived of liberty^[47] and the right to security of person.^[48] The overcrowding at the MRC and flawed implementation of the smoking ban came perilously close to infringing both of these rights.

CONCLUSION

The Victorian state government’s endeavour to meet its various duties by way of a smoking ban caused harm to prisoners, prison employees and the public purse. This seemingly altruistic piece of legislation failed to pay proper regard to the people it was designed to protect. It was foreseeable that effectively forcing remand prisoners to go ‘cold turkey’ at a time of high stress, and in the context of gross overcrowding, would result in harm.

At a high level, the purpose of detention is to protect the community as well as to punish, deter and rehabilitate offenders. Inmates are to be provided with basic humane conditions and beyond this, wherever possible, rehabilitation should be provided and supported by the prison facility.

The provision of rehabilitation to inmates should not interfere with the government’s positive duty of care to provide for the safety of its employees. The government’s duty of care to prisoners does not extend to a positive duty of care to ensure that smokers leave prison as non-smokers.

Despite being under the absolute control of the prison authority, prisoners retain a level of autonomy and as adults, remain responsible for their own actions. An overly paternalistic and interventionist approach to rehabilitation, as in this case, can be self-defeating.

Michel Margalit is an Accredited Specialist in Personal Injury Law and Partner at Le Grand Margalit Lawyers. She holds a Bachelor of Laws and a Master of Laws (Applied Law). Throughout her career Michel has fought for the rights of injured Victorians, in the jurisdictions of WorkCover, TAC and Public Liability. PHONE [phone] FAX [phone] EMAIL [e-mail].

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^[1] K Walshe, Independent Investigation into the Metropolitan Remand Centre Riot Final Report (December 2015) 2.

^[2] Explanatory Memorandum, Corrections Amendment (Smoke-Free Prisons) Bill 2014 (Vic), 1.

^[3] Victoria, Hansard, Legislative Assembly, 25 June 2014, The Honourable Jane Garrett (Member for Brunswick).

^[4] Ibid.

^[5] See above note 1.

^[6] Ibid, 6.

^[7] Ibid, 6-7.

^[8] Ibid, 42.

^[9] Ibid, 41.

^[10] Victorian Auditor-General, Prison Capacity Planning (November 2012) xii.

^[11] See above note 1, 7.

^[12] Ibid.

^[13] Ibid, 24.

^[14] Ibid.

^[15] Ibid, 23.

^[16] Ibid, 25-26.

^[17] Ibid, 31.

^[18] Ibid, 38.

^[19] Ibid, 26.

^[20] Ibid, 35.

^[21] Ibid, 37.

^[22] Occupational Health and Safety Act 2004 (Vic), s21(1).

^[23] See <worksafe.vic.gov.au>.

^[24] See above note 1, 33.

^[25] Ibid, 27.

^[26] N Choahan, ‘Traumatised prison officer sues Victorian government over Ravenhall riots’, The Age (online), 22 March 2017, <https://www.theage.com.au/national/victoria/traumatised-prison-officer-sues-victorian-government-over-ravenhall-riots-20170322-gv3i23.html>.

^[27] Victoria Police, Victoria Police Annual Report 2015 – 2016 (2016) 41.

^[28] D Hurley, ‘Legal defence over Metropolitan Remand Centre riot charges costs $155,000 despite guilty plea’, news.com.au, 17 November 2017, <https://www.news.com.au/national/victoria/legal-defence-over-metropolitan-remand-centre-riot-charges-costs-155000-despite-guilty-plea/news-story/ed0ec8b662d6b8f4b2deec21dd54b059>.

^[29] Ibid.

^[30] A Cooper, ‘Prison riot: Victorian Department of Justice fined $300,000’, The Age (online), 15 December 2017, <https://www.theage.com.au/national/victoria/prison-riot-victorian-department-of-justice-fined-300000-20171215-h05kaw.html>.

^[31] See above note 27.

^[32] Ibid.

^[33] AIHW, Australian Government, The health of Australia's prisoners 2012 (2013).

^[34] Victoria, Hansard, Legislative Assembly, 26 June 2014, The Honourable Rich-Phillips (Assistant Treasurer).

^[35] Ibid.

^[36] A Djachenko, W St John and C Mitchell, ‘Smoking cessation in smoke-free prisons: a grounded theory study’, International Journal of Prisoner Health, Vol. 12, No. 4, 2016, 270-279, <https://doi-org.ezp.lib.unimelb.edu.au/10.1108/IJPH-06-2016-0019>.

^[37] Ibid.

^[38] Ibid.

^[39] Ibid.

^[40] Ibid.

^[41] Corrections Act 1986 (Vic), s20.

^[42] Ibid, s21(1).

^[43] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21.

^[44] Workplace Rehabilitation and Compensation Act 2013 (Vic).

^[45] ABC Radio, ‘Victoria’s Ombudsman prepares for more prisoner complaints’, 2 July 2015, <http://www.abc.net.au/am/content/2015/s4265853.htm> .

^[46] See above note 36.

^[47] Charter of Human Rights and Responsibilities Act 2006 (Vic), s22.

^[48] Ibid, s21.