Farr & Ors v Queensland Corrective Services Commission [1999] QSC 86

4. The first plaintiff's transfer to the MSU was effected on 12 March 1998, by the general manager of the Sir David Longlands Correctional Centre signing a "Standard Referral" form which "referred" the first plaintiff "for admission" to the MSU. The Director of Custodial Corrections sent a memorandum to the general manager of the Woodford Correctional Centre giving "approval" to the first plaintiff's "admission" to the unit to "take effect from 2 June 1997, and to continue until further notice".

5. The Queensland Corrective Services Commission's Rule 213 made under the authority of s.20(1) Corrective Services (Administration) Act 1988 is intended "to provide a standardised framework for the implementation of Policy and Procedures" for the MSU. Rule 213 provides that "prisoners held in the MSU will be managed in accordance with the procedures outlined in Chapter 29 of the Policy and Procedures Manual Custodial Corrections". Paragraph 2103 of the

" The MSU may be utilised as a short-term placement unit aimed at stabilising disruptive behaviour. However, in situations where a prisoner is assessed as representing a high risk of escape from secure custody, accommodation within the MSU may be utilised on a long-term basis.

2104 The Maximum Security Unit will develop Individual Management Plans for each prisoner admitted to the unit to detail the components of each prisoner's management regime. Each plan includes behavioural goals and security requirements. The goals will ensure that an appropriate degree of control is maintained, in the case of prisoners who are escape risks, and/or to foster positive behaviour change, prior to the prisoner progressing through the correctional system. "

6. On 2 March 1999, after the issue of the writ and notice of motion, the general manager of the Woodford Correctional Centre ordered, pursuant to s.39(2)(a) of the Act, that the plaintiffs receive special treatment "for the security and good order of the prison". The defendant approved a period of special treatment in excess of seven days under s.39(5) of the Act. It is unlikely that the order and the approval operate retrospectively; see Re Abbott and ors[1]. Even if they were they do not address all the issues raised by the plaintiffs.

7. The orders provided for conditions under which the plaintiffs are accommodated in the MSU and that they are to receive all privileges "in the Intensive Management Plan that can be practicably provided". Put shortly the management plans are behaviour modification plans involving the granting or withholding of privileges.

8. Section 39 of the Act deals with special treatment. It provides:

"special treatment" means the segregation or partial segregation of a prisoner from other prisoners under conditions prescribed by rule.

(2) The general manager of a prison may by instrument order that a prisoner receive special treatment-

(a) for the security or good order of the prison; or

(3) An instrument whereby a prisoner is ordered to receive special treatment shall specify such of the conditions referred to in subsection (1) as the general manager determines shall apply to the prisoner's treatment.

(4) A prisoner shall not, in respect of any period for which the prisoner receives special treatment, forfeit any privileges other than those privileges that the prisoner can not practicably receive while receiving special treatment.

(5) A general manager shall not order a prisoner to receive a period of special treatment exceeding 7 days without the approval of the commission.

(6) A prisoner ordered to receive a period of special treatment exceeding 3 days may require the general manager to refer the order to an official visitor for review and the general manager and the official visitor shall comply with the requirement as soon as is practicable.

(7) Where a prisoner is ordered to receive a period of special treatment exceeding 1 month, the official visitor shall review the order as near as is practicable to the expiration of the first month and thereafter at intervals not exceeding 1 month in any case, until the period expires.

(8) An official visitor may, for the purposes of the official visitor's review of an order, exercise any of the powers referred to in section 24 and shall after completing the review-

(a) recommend to the commission that the order be confirmed, varied or set aside; and

(b) where the official visitor recommends that the order be varied by reducing the period of special treatment or that the order be set aside - make such recommendation as the official visitor thinks fit concerning any privileges forfeited by the prisoner while receiving special treatment.

(9) The commission, upon receiving the recommendation of the official visitor, may affirm or vary the order of the general manager or may rescind the general manager's order and substitute its own decision for it.

(10) A medical officer shall examine a prisoner -

(a) as soon as is practicable after the prisoner commences a period of special treatment; and

(b) if the period allows - within 7 days after the first examination and thereafter at intervals not exceeding 7 days in any case, until the period expires; and

(c) as soon as is practicable after the period of special treatment expires. "

9. The defendant points to various provisions of the Act and to regulations and rules apart from s.39, as authorising the plaintiffs' segregation and treatment in the MSU. These may be summarised as follows:

s.13 of the Act and s.2 (objects) ; 13 (responsibility for security and management of prison); 14 (general manager responsible for security and management of prison and custody of prisoners); 16 (delegation); 17(1) (general manager may make rules for management and security or prison and prisoners); 18(2)(a) commission to determine policy; 20(1) (Commission may make rules for management of prison and custody of prisoners); 23 (duties of official visitor); 32 (prisoner detained in prison); 33 (person admitted deemed to be in custody); 35 (authority for admission to prison); 36 (duty to ensure prisoners informed); 37 (as far as practical separate accommodation for each prisoner); 44 (control of prisoners); 69 (transfer of prisoners); 72 (removal of prisoners in interests of justice); 74 (detention during transfer); 96 (separate confinement); 111 (declaration of emergency); 130 (c) (regulation for segregation); 13 (classification) 16 and s.71 of the Corrective Services Regulations 1989 (Q) (the regulations); Rule 3 (special treatment); 168 (separate confinement); 213 (maximum security unit) and 213 (MSU practices and procedures) of the Commission Rules and paras 2108; 2103; 2124; 2136; 2137; 2141; 2144; and 2145 Chapter 29 of the Commissions Policy and Procedure.

10. These are, in my view, general provisions providing the framework for the operation of the corrections system. Section 39, however, is specific as to the authority to segregate and as to how segregated prisoners are to be dealt with. In my view it prevails over the provisions relied on by the defendant; Leon Fink Holdings Proprietary Limited v. Australian Film Commission, Margaret Fink Holdings Proprietary Limited v. Australian Film Commission[2], Saraswati v. The Queen[3]. In this context it should be noted that no other section of the Act authorises special treatment as defined by s.39.

11. In McEvoy v. Lobbain[4] the Full Court held that the provisions of the current Act's predecessor which provided for broad functions and powers (comparable to various of those relied on by the defendant) authorised segregation in the circumstances there under consideration. Thomas J. (Lee J. concurring[5]) pointed out that the situation under consideration in that case was "less likely to apply under the current Act which together with the regulations and rules made under it, provided a more specific regime for segregation".

12. Section 39 is the source of power to subject prisoners to special treatment and sets the parameters of that treatment. It does not authorise "open-ended" special treatment. An order for a special treatment should be for a specific portion of time. Sub-sections (4), (5), and (6) refer to "any" or "a" period. Sub-section (7) makes reference to "a period" and "until the period expires". Sub-section (8) speaks of the period being reduced. Sub-section 10, in (a), (b) and (c), refers to "a" or "the period" and (c) specifically refers to the expiration of "the period". These provisions support the view that "period" in the section is a specific portion of time.

13. That is consistent with other aspects of the section which reflect a recognition of the serious deprivative effect of special treatment. Thus sub-section (4) provides that a prisoner is not to forfeit any privileges other than those "the prisoner cannot practically receive" during a period of special treatment. The effect of the provision is to make practicality of receipt the sole basis on which any privileges of a prisoner under special treatment may be forfeited. The use of the power to segregate a prisoner based on security considerations, for example, as a means of imposing a penalty would be an improper purpose; c.f.Bromley v Davies[6]. By the same token to forfeit any privileges of a segregated prisoner for a reason other than practicability of receiving them contravenes s.39(4). By the same token the provisions of s.39(6)(7)(8) and (10) must be complied with.

1. The plaintiffs are undergoing special treatment within the meaning of s.39 of the Corrective Services Act 1988 while segregated from other prisoners;

2. The plaintiffs' incarceration in the Maximum Security Unit at Woodford Correctional Centre is special treatment and must comply with s.39 of the Corrective Services Act 1988;

3. To the extent to which the stated objective of the defendant to provide a graduated continuum of privileges for the promotion of positive behaviour change while the plaintiffs are undergoing special treatment involves the forfeiture of privileges it is inconsistent with s.39(4) of the Act;

4. To the extent to which Chapter 29 of the Queensland Corrective Services Commission's Policy and Procedures Manual and Rule 213 of the Queensland Corrective Services Commission's Rules purport to authorise the forfeiture of privileges in respect of a period for which a prisoner receives special treatment they are invalid.

15. The plaintiffs also seek a declaration that the plaintiffs' incarceration in the MSU at Woodford Correctional Centre between 1 June 1998 and the dates in the orders referred to in the affidavit of Robert George Marsh filed by leave on 16 March 1999 was unlawful. The notice of motion sought a declaration up to "the present". That was altered in oral submissions to reflect what had been done after the proceedings were instituted. As I have said I think it unlikely that the orders and approvals operate retrospectively. However, I am not prepared to make the declaration sought without further submissions as to that and whether the incarceration prior to the order was invalid as distinct from conditions being invalid.

16. The notice of motion also sought injunctions to give effect to the declarations sought. Presumably the defendant will act according to law. I will therefore refrain from granting the injunctions for the present. I adjoin the notice of motion to a date to be fixed to be brought on by any party on reasonable notice.

[1] unreported, SC, 233/95, 21/07/95, de Jersey J (as His Honour then was).

[2] (1979) 141 CLR 672 @ 678.

[3] [1991] HCA 21; [1990-1991] 172 CLR 1 @ 24.

[6] (1983) 34 S.A.S.R. 73.