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Victoria's prison system: |
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Victoria's prison system: |
5.2 Within this Part of the Report, audit has evaluated the monitoring performance of the Commissioner's Office against 7 key criteria. These criteria were formulated in consultation with the Commissioner's Office and prison operators.
5.3 The regulatory and management framework established by the Department of Justice to apply to the expanded prison industry provided, inter alia, that the role of the Commissioner would involve a combination of monitoring and operational responsibilities. In addition, as an organisational unit within the Department, the Commissioner's Office became subject to the direct influence of the Department which itself is the controlling entity over CORE in terms of the operations of the State-owned prisons.
5.4 Audit examination of the operational environment of the Commissioner's Office identified several elements of this environment which adversely impact on the independence and overall effectiveness of the Office in discharging its key monitoring functions within the industry. Audit has concluded that the evolving prison industry, encompassing a mix of State-managed and privately-operated prisons, now requires a regulatory framework which features a truly independent Correctional Services Commissioner.
5.5 Two options discussed by audit with the Department for enhancing the current operational framework of the Commissioner and that position's effectiveness and independence were:
5.7 As is the case with all areas of the public sector, the Commissioner's Office has the responsibility of ensuring that maximum efficiency and effectiveness are derived from its management of limited available resources. No organisation has an undeniable right to receive budgetary increases.
5.8 Nevertheless, the nature and absolute importance of the Commissioner's role, particularly if it is operating in a truly independent manner, makes it imperative that the Government is always assured that the Commissioner's Office is adequately resourced to effectively meet its vital statutory responsibilities for the impartial monitoring of industry performance. On the basis of matters raised in this Report, there is great scope to upgrade the resource capability of the Office relating to its monitoring role. A sufficiently resourced and effective industry monitor would be a vital source of independent confirmation to the Government that management of the industry was carried out in a manner conducive to ensuring the safety of the community and the welfare of prisoners.
5.9 To date, the monitoring function of the Commissioner has been predominantly compliance based in nature in that monitoring tasks have been focussed on validating performance by prison operators against service delivery outcomes set out in contractual agreements. As pointed out in Part 7 of this Report, these service delivery outcomes, which are used to determine the level of annual performance remuneration to be paid to private prison operators, are essentially quantitative in nature. Examples of important areas of qualitative performance not addressed as specified outcomes in the agreements are the quality of staff training and the results of prisoner rehabilitation programs. As a consequence, such key aspects of operators' performance have not been routinely examined as part of the Commissioner's monitoring function.
5.10 It seems very important at this stage of the industry's evolution that the need to expand the range of service delivery outcomes expected of prison operators to encompass key qualitative performance measures be given high priority. The Department will have the opportunity to address this matter at the progressive expiration of the period of each contractual agreement with the private operators and of the service agreement with CORE.
5.11 Several government agencies such as the Ombudsman, the Department of Human Services and Victoria Police have a responsibility or role within the prison industry. The activities undertaken by these agencies serve to complement the accountability processes embodied in the contractual agreements with prison operators and to give the community confidence in the overall management of the industry. Their existence also demonstrates to the community that, although the Commissioner fulfils the key role in overseeing the activities of the prison system, there are additional avenues in place for individuals to provide input or receive assurance on the safe custody and welfare of prisoners.
5.12 Finally, audit considers that the limited range of information dealing with the industry communicated to the Parliament to date in the Department's annual report falls far short of the level necessary to effectively meet its accountability obligations relating to operation of the prison system. It also compares quite unfavourably with the degree of public reporting on prison operations by other Australian jurisdictions. The fact that the operation of the prison industry involves annual outlays of taxpayers' funds in excess of $160 million reinforces the importance of appropriate corrective action.
5.13 The Department should move to incorporate in future annual reports more extensive information (some suggestions are identified by audit in this Part of the Report) as a key means of discharging the Government's accountability to the Parliament for the operation of such a significant State industry.
5.15 Chart 5A shows the organisational structure of the Office of the Correctional Services Commissioner which was introduced only very recently (effective from 12 April 1999) by the current Commissioner who commenced duty in the position in February 1999. The organisational unit within the Office responsible for monitoring functions has been highlighted in the chart to align with the subject matter of this Part.
5.16 In addition to identifying in the restructuring document several specific areas where the restructure is expected to lead to better functioning of the Commissioner's Office, the Commissioner stated "... it is hoped that the restructure will bring great clarity to roles and functions, facilitate a strong sense of collaboration (across the office) and promote greater understanding of decision making and enhance management and ... coordination arrangement".
Nature of the role envisaged for the Commissioner
5.17 The Commissioner's role is articulated in section 8A of the Corrections Act 1986, which states that:
"The Commissioner is responsible for:
"The Commissioner must endeavour to exercise his or her functions in relation to correctional services impartially between all providers of correctional services so far as this is consistent with the safe custody and welfare of prisoners and offenders and the proper operation of the correctional services".
5.18 As part of the process leading to the establishment of this position, the Department of Justice commissioned an external consultant during 1994 to examine and present a range of organisational frameworks to accommodate important changes to the State's evolving corrections industry. These changes centred on the need to identify an appropriate monitoring and regulatory role for the Government in the light of the introduction of private sector service providers.
5.19 The terms of reference provided to the consultant were very wide-ranging and included a requirement to "Propose roles and functions of the Office of Commissioner and the public corrections agency and the private prisons contract administrator". Of relevance to this particular term of reference was the fact that the Department had advised the consultant that a regulatory and management framework had already been determined for the industry. The consultant described this established framework as comprising:
5.20 The consultant presented final recommendations to the Department in a January 1995 report entitled Correctional Services Restructuring. The report included the comment that "In the balance of this report we have accepted the structure planned for the Victorian system as given, although we note that the adoption of a model which emphasises competition between sectors limits the capacity of the system to provide a single source of advice on the system".
5.21 The consultants canvassed 2 principal options for an operational and management framework to support the given departmental structure. The role of the Commissioner in the 2 options was as follows:
5.22 The consultant described the advantages and disadvantages of each option and recommended the adoption of option 2.
5.23 The Commissioner's Office was subsequently established on 1 July 1995 as the organisational unit within the Department to assist the Commissioner in meeting the responsibilities assigned to the statutory position. The objectives of the Office as set out in the Department's 1996-97 Annual Report are to:
5.24 The above objectives are mentioned in a document entitled The Victorian Adult Corrections System issued by the Department in September 1997. This document also refers to the leadership role of the Commissioner's Office in terms of providing leadership to the Victorian corrections system. In addition, it indicates that the Office was established to oversee the application of the Corrections Act throughout the corrections system.
5.25 It can be seen from the above objectives that the role established for the Commissioner's Office in 1995 reflected a combination of the features of each option earlier canvassed by the Department's consultant, i.e. it comprised a combination of standard setting, strategic planning, monitoring and operational responsibilities.
5.26 Identification of the responsibilities and functions of the Commissioner which would best suit the evolving prisons industry would have been a difficult and complex task. It is also important to recognise that the nature of the Commissioner's role as identified in 1995 would need to be periodically reassessed in the light of subsequent industry experience.
5.27 Audit has suggested in later paragraphs that it would be timely for the Government to re-assess the status and independence of the Commissioner as an integral step in achieving continuous improvement in the management of the prison industry. While the suggestions have been provided in the context of the Commissioner's monitoring functions, strengthening of the status and independence of the Commissioner's Office would also enhance the overall capacity of the Commissioner to discharge the other important functions of the position.
5.29 The Corrections Act 1986 and the agreements entered into with the various providers formally enshrine and emphasise the importance of the Government's monitoring responsibility.
5.30 The role of the Monitoring and Assessment Unit, (as outlined in the Correctional Services Commissioner's 1998-99 Business Plan) which is a key unit within the Commissioner's Office, is to
5.31 In establishing the operations of the Monitoring and Assessment Unit, the Commissioner considered a range of monitoring regimes and decided initially to take a staged approach to the task of monitoring the performance of prison operators. Under this approach, it was determined within the Commissioner's Office that the initial monitoring of the industry would be extensive, detailed and compliance-based. In addition, the validation and reliability testing of data provided by operators was identified as a high priority, given the entry of new providers to the corrections industry and the need to acclimatise the Public Correctional Enterprise (CORE) to a new external accountability framework.
Evaluation of the work undertaken by the Monitoring and Assessment Unit
5.32 Monitoring and assessment of Victoria's public and private prison operators requires a framework which is rigorous, effective and consistently applied across the prison system. With this in mind, audit, in consultation with a range of key parties including the Commissioner's Office and the prison operators, formulated a suite of key desirable features of an appropriate monitoring framework for the prison system. Seven desirable features (or criteria) were developed as part of this process and are set out below:
5.33 The performance of the Unit has been evaluated by audit against these 7 desirable features.
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5.34 As previously mentioned, the Commissioner's legislative responsibility to monitor prison operators is set out in section 8A of the Corrections Act 1986, which states that:
"The Commissioner is responsible for:
(a) monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders; and
(b) exercising any other functions relating to correctional services that the Secretary may determine from time to time.
"The Commissioner must endeavour to exercise his or her functions in relation to correctional services impartially between all providers of correctional services so far as this is consistent with the safe custody and welfare of prisoners and offenders and the proper operation of the correctional services".
5.35 It can be seen that the legislation assigns specific responsibility to the Commissioner for monitoring the provision of prison services with this responsibility linked to providing independent confirmation that management of the industry is consistent with achieving safe custody and welfare of prisoners.
5.36 Section 8E of the Corrections Act obligates all private prison operators and sub-contractors engaged by operators to provide complete access to any person authorised by the Secretary of the Department for any purpose associated with confirming compliance with the legislation or ensuring that the safe custody and welfare of prisoners and offenders are maintained. It is through this section that the Commissioner derives the authority to implement on, an ongoing basis, the monitoring functions assigned to the position under the legislation.
5.37 The legislation, under section 9D, provides an additional avenue, beyond the specific work of the Commissioner, for the Secretary to appoint a monitor, if deemed necessary from time-to-time, to assess and review the provision of services by prison operators or their sub-contractors. The annual report to the Secretary of any monitor appointed under the Act must be included in the Department's annual report to the Parliament. The Department advised that, to date, it has not found it necessary to make use of this specific legislative provision.
5.38 Part 7 of this Report contains comment on the adequacy of the powers of the Commissioner within the contractual framework established for the industry to review services provided by prison operators. Audit has concluded within Part 7 that the powers of the Commissioner under the contractual agreements with the prison operators are sufficient to enable discharge by the Commissioner of the position's monitoring responsibilities.
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Consistent and balanced treatment of all prison operators
5.39 The previously-mentioned statutory responsibilities of the Commissioner include a requirement that the Commissioner exercises impartiality in the carrying out of the position's functions across the prison industry. This need to impartially conduct functions necessitates that there is a consistent and balanced approach to the monitoring of the activities of prison operators undertaken by the Commissioner.
5.40 The monitoring strategies formulated by the Commissioner provide inter alia for the placing of a high priority on the validation and testing of data furnished by all prison operators. At the time of the examination, audit was advised by the Director of the Monitoring and Assessment Unit that the placing of this priority arose as a consequence of the entry of private sector managed prisons into the industry but was also seen as an important part of CORE's progressive acclimatisation to its new external accountability environment. Within this environment, CORE assumed the role of public sector provider and became subject to the same level of scrutiny by the Commissioner as the private prison operators. This monitoring direction was consistent with the legislative provision dealing with impartiality.
5.41 The importance of facilitating through a monitoring focus CORE's acclimatisation to a wider accountability environment in the period from 1995 was given visibility by the Government's announcement in 1996 that it would proceed with the corporatisation of CORE in the foreseeable future. It was the Government's initial intention to present legislation to the Parliament during the 1998 Spring session, however, the planned action was subsequently postponed to a later date. Audit considers that any action to implement a corporatisation strategy for CORE would complement the Government's high level aim, as presented in the 1994 second reading speech to the amendment Bill providing for private sector operators, of establishing real competition in the delivery of prison services. Such real competition is yet to occur. In any event, it is critical that CORE is subject to the same monitoring regime and performance expectations and rewards as the private operators and there is a level playing field for all industry participants for assessing the performance of all industry participants.
5.42 Audit examination in this area found that, because the 3 new private prisons were commissioned at reasonably close intervals over the period 1996 to 1997, the Commissioner's Office had directed the major proportion of its monitoring efforts to these prisons. As a consequence, very limited monitoring of CORE's operations at the publicly-managed prisons has been undertaken, with the validation of data submitted from 6 of the 10 CORE prisons for the months of September, October and November 1997 representing the only work completed for the publicly-managed prisons.
5.43 The limited attention given to the monitoring of CORE's operations in recent years has not been in line with the stated intention of facilitating the acclimatisation of CORE to its changed accountability environment. In addition, it has meant that the 10 prisons operating within CORE's responsibility, currently accommodating around 1 600 prisoners or 55 per cent of the total prisoner population and involving the outlay in direct costs of $60 million in taxpayers' funds annually, have not been subjected to anywhere near the same level and intensity of scrutiny by the Commissioner as has been applied to the private prisons. Without the benefit of the results of full scrutiny, the Government, and ultimately the Parliament and the community, can only rely on an assumption that the quality of operations within these prisons has at all times been in line with specified standards.
5.44 The view formed by audit during an examination in this area was that the Commissioner's monitoring staff have limited time to analyse statistical information presented by CORE and to investigate underlying causal factors for any unusual or potentially adverse trends. By way of illustration, the statistical information furnished by CORE includes data on prisoner escapes in the State's publicly-operated prisons. This data showed that, in the 3½ year period to 31 December 1998, a total of 54 escapes had occurred of which 51 were from minimum security prisons. Table 5B identifies the number of escapes from these prisons over this period.
Prison 1 July 1998 to security 1995-96 1996-97 1997-98 31 December Total level 1998
Maximum - - - - - Medium - (a) 2 1 - 3 Minimum (a) 16 (a) 12 17 6 51 Total 16 14 18 6 54
5.45 In audit opinion, the mere collection of such important statistics involving incidents with significant community safety implications and basic checking of such data to establish that escapes are recorded appropriately are not adequate substitutes for robust analysis and identification of matters requiring further investigation.
5.46 In discussions on this matter with the Commissioner's Office, audit was advised that the escapes reported by CORE were not assessed as warranting further investigatory action because of the fact that they occurred predominantly in minimum security prisons. While this may be the case, audit considers that important occurrences such as escapes should be subject to some form of investigation by the Commissioner's Office particularly if for no other reason than to identify the underlying causal factors and any necessary remedial action. Examples of such remedial action could include rectifying a fundamental security weakness or addressing inappropriate classification and placement of prisoners.
5.47 In discussions with audit, all 3 private prison operators considered that they have been subjected to a level of scrutiny over and above normal contract management requirements.
5.48 In making the above comments on the limited monitoring focus on the prisons managed by CORE, audit recognises that risk factors need to play a significant part in the formulation of the Commissioner's monitoring strategies and that a number of serious incidents at Port Phillip Prison (commented on later in this Part) have required specific attention within the Commissioner's Office.
5.49 In the final analysis, it becomes incumbent of the Commissioner to ensure over time that there is a consistent and balanced allocation of scarce monitoring resources over the entire prison industry.
Independence from influence by the Department, prison operators or other parties
5.50 Any organisation charged with the responsibility of reviewing or monitoring the operations of another organisation and reporting the results to a third party must be capable of operating in a totally independent manner. Such a prerequisite is necessary to ensure that the reviewer or monitor is free from any influence or direction so that responsibilities are discharged without fear or favour and reported results can always be regarded as totally impartial in nature. The fundamental principle of independence underpins the work of public officials such as the Ombudsman and the Regulator-General in Victoria, Auditors-General, and internal and external auditors in both the public and private sectors.
5.51 The audit examination of the operational environment of the Commissioner's Office identified several elements of this environment which adversely impact on the overall independence of the Office. These factors are itemised below:
5.52 In addition to the above points, 3 staff from CORE have worked in the monitoring and assessment unit within the Commissioner's Office since early 1998 under a secondment arrangement. While secondees are required to sign confidentiality agreements, an arrangement of this nature is not considered to be conducive to engendering confidence within the prison industry in the level of independence accorded to the Commissioner.
5.53 When considering the above matters, it is important to emphasise the reference made in the second reading speech at the time of the 1994 legislative amendments that "The overall responsibility for the operation of correctional services [involving both private and public managed prisons] will, however, remain with the government". In other words, it is highly appropriate for the Government to maintain a sufficient level of knowledge and control to support its high level and ultimate responsibility for the safety of the community and the welfare of prisoners.
5.54 With this key point in mind, audit considers, on the basis of the issues identified above, that the State's evolving prison industry encompassing a mix of State-managed and privately-operated prisons now requires a strong and credible regulatory framework which features a truly independent Correctional Services Commissioner. In this regard, the existing framework does not enable the Commissioner to operate in an effective and independent manner as industry monitor.
5.55 Several options are available for enhancing the current operational framework for the Commissioner and that position's effectiveness and independence. In discussions with the Department, audit indicated that such options could include:
5.56 Obviously, other options for change which focus on ways to improve the organisational functioning of the Commissioner's Office within the Department (as distinct from an at arms-length relationship) are available for consideration by the Government. The purpose of citing the above options is to draw attention to 2 potential avenues, either of which if implemented would enable the Commissioner to operate more effectively as an independent industry monitor.
5.57 Also, as identified in an earlier paragraph, the emphasis by audit on the Commissioner's monitoring functions is not intended to undermine the importance of the position's other responsibilities. Audit considers that any strengthening of the status and independence of the Commissioner's Office would also enhance the overall capacity of the Commissioner to discharge the other important functions of the position.
5.58 Late in March 1999, audit was provided with details of changes to the management and organisational structure of the Department which were advised to staff by the Secretary on 4 February 1999. Under these changes, the Commissioner becomes directly responsible to the Deputy Secretary (Justice Operations) of the Department. While this new arrangement is expected, from the Department's perspective, to streamline the responsibility link between the Commissioner and the Deputy Secretary, it will in audit opinion further weaken the independence of the Commissioner as the previous influence of the Deputy Secretary (Justice Operations) over the Commissioner is now formalised within the departmental structure.
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5.59 The various agreements relating to both public and private prisons require prison operators to regularly report to the Commissioner on their progress against the performance obligations set out in the agreements. The nature of information to be reported is similar for both categories of prisons.
5.60 The Commissioner's Office gathers and analyses the information provided by operators for use in its monitoring function. It validates the accuracy and reliability of such information on a sampling basis. As part of this monitoring and validation process, the Office provides the Department's Corrections Contract Branch with relevant particulars of prison operators' performance. This data is used by the Branch to determine the level of monthly payment due to private operators in return for services under the terms of the agreements (CORE receives an annual budgetary allocation from government). The validation undertaken by the Commissioner's Office is the sole source of assurance to the Branch on the accuracy and reliability of performance data furnished by operators.
5.61 Audit was informed by the Department that under the previous industry regime much less emphasis was directed to the validation of information presented by management within the public prisons.
Nature of information provided by operators
5.62 The information provided by operators to the Commissioner's Office falls into 3 principal categories, namely:
5.63 It can be seen that prison operators have an ongoing responsibility to submit information dealing with key elements of prison management as part of the accountability regime established by the Government for the prison industry.
Soundness of the Commissioner's approach to confirming the reliability of information reported by operators
5.64 The Monitoring and Assessment Unit within the Commissioner's Office conducts validation exercises which are aimed at verifying that the information furnished monthly by operators is accurate and reliable. These exercises are quite detailed and involve following the trail of information in selected areas down to the first point of record. Data is selected for examination on a sampling basis over each 12 month period.
Validation testing at State-managed prisons
5.65 Earlier paragraphs have identified the limited level of monitoring activity undertaken within the Commissioner's Office with regard to the activities of the public prisons within CORE. The earlier reference indicated the validation of data submitted from 6 of the 10 CORE prisons for the months of September, October and November 1997 represented the only work completed by the Commissioner's Office in respect of the publicly-managed prisons.
5.66 The material made available to audit by the Commissioner's Office relating to the above work indicated that validation tests against legislative requirements and standards etc. were carried out at Beechworth, Melbourne Assessment, Barwon, Bendigo, Loddon and Ararat prisons in the following service areas:
5.67 While the reports on the above tests showed that none of the prisons had achieved full compliance with requirements in all service areas, they indicated that all prisons achieved a significant level of compliance in most areas. Nevertheless, audit considered there were sufficient instances of non-compliance to warrant follow-up action by the Commissioner's Office. Some of the key areas identified in the testing reports as requiring attention were:
5.68 In addition to follow-up action, audit considered that some additional validation testing by the Commissioner's Office in the State-managed prisons, including the 4 prisons not visited in 1997, would have been warranted in the intervening 15 month period in order to satisfactorily meet the Commissioner's monitoring obligations under the legislation.
Validation testing at private prisons
5.69 With regard to the private prisons, as each of the new prisons were commissioned, the Commissioner's Office experienced many problems with the quality of data initially supplied by all 3 prison operators. These problems related to omission of matters which should have been reported, or the defining of an incident differently to the definitions provided by the Commissioner's Office, resulting in the inclusion of the incident in a different category. For example, an incident where a prisoner headbutted a wall to obtain medication was defined by the prison operator as "Accidental injury" but according to the Commissioner's Office should have been shown as a self-mutilation. Also, a September 1998 document prepared by the Director of the Monitoring and Assessment Unit dealing with the recording of information by the operator of Port Phillip Prison for the months of December 1997 and May and June 1998 listed 15 examples of instances where information had been incorrectly recorded or omitted.
5.70 The Commissioner's monitoring program allowed for a 3 month intensive validation program to be in place from the date of commissioning of a new prison. In planning this program, the Commissioner's Office anticipated that the quantum of initial errors in the recording of data should by the end of 3 months have fallen to a level which would not require intensive monitoring. However, it became obvious to the Commissioner's Office that it would have to devote more resources to the validation process for the private prisons than originally envisaged.
5.71 The audit examination at the time in this area found that, with the exception of Port Phillip Prison, the problems with the quality of information from the private prisons had been largely resolved.
5.72 The problems experienced by the Commissioner's Office with data provided by the operator at Port Phillip Prison revolved around the accuracy of the reporting of incidents or the recording of information. For example, in September 1998 at the time of the first annual performance review of the prison, the Commissioner's Office advised the Corrections Contracts Branch of areas where the operator's performance was not in compliance with the requirements of its agreement with the Minister. In the section dealing with Illicit Drugs, the document stated that the drug testing results from the Commissioner's Drug Testing Program for Port Phillip Prison significantly differed from the rate returned from the prison's random general testing program and that "drug testing results [submitted by the prison] cannot be relied upon given the audit assessment by Pricewaterhouse Coopers".
5.73 The above firm was appointed as the probity auditor for the drug testing program. The firm's report did not indicate that false information had been provided to the Commissioner's Office but it did state that the following issues affected the reliability of drug testing results reported by the prison operator:
5.74 The Commissioner's September 1998 document provided to the Corrections Contracts Branch stated that "The drug testing results from the audit identified 11.8 per cent of prisoners testing positive to illicit drugs and a further number have been returned diluted samples suggesting the rate is actually higher than 11.8 per cent. This is above the required outcome of 8 per cent and significantly differs with the rate returned from the prison's random general testing programs which recorded 9.09 per cent and 3.33 per cent respectively for the months of June and July 1998."
5.75 In effect, because of a continuing unsatisfactory position with Port Phillip Prison at that time, the Commissioner's Office determined to maintain an intense level of validation work for data received from the prison. An indication of the length of this special focus can be identified from information provided to audit by the Commissioner on the level of full-time monitoring resources which had to be allocated to Port Phillip Prison since its opening in September 1997. Table 5C shows the relevant details up to 12 February 1999, the last day of use of full-time monitoring staff at the prison.
Number of
Quarterly period monitoring staff
September-December 1
1997
January-March 1998 1
April-June 1998 3
July-September 1998 4
October-December 1998 3
January-12 February 1
1999
5.76 Given that the Commissioner's Monitoring and Assessment Unit comprised just 9 staff (including the Director and an executive assistant) during the period mentioned in Table 5C, almost all of the monitoring resources available to the Commissioner would have been involved in the scrutiny of operations at Port Phillip Prison during the quarters ended June, September and December 1998 (these quarters covered the period following the March 1998 major disturbance at the prison which is commented on in later paragraphs).
5.77 In summary, it can be seen that the Commissioner's Office found it necessary to allocate a greater than anticipated level of resources to Port Phillip Prison because of continuing reservations as to the quality of data submitted to it by the prison operator. This situation obviously meant that scarce monitoring resources could not be allocated to other areas and underscores the importance of an adequate deterrent to the prison operator if the prison's performance has been found to be consistently below expected levels. Comment on the adequacy of the level of financial penalties imposed to date on the operator of Port Phillip Prison is included in Part 7 of this Report.
5.78 Finally, in terms of the overall management of the Commissioner's validation functions, audit found there is a need for the Commissioner's Office to systematically compile data which compares the level of its validation resources directed to both the public and private prisons over time and the results of the validation work in each prison across the system. This approach is necessary to support its decision-making on the use of resources so that it can always be satisfied its scarce monitoring resources have been allocated to priority areas and managed with maximum effectiveness.
5.79 Also, audit considers that, as the contract management process relies on the data supplied by prison operators, the validation functions undertaken by the Commissioner will need to remain a key feature of the overall monitoring framework to ensure that operators continue to attach a high priority to the provision of complete and accurate data.
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5.80 Each year the Monitoring and Assessment Unit submits for formal approval by the Commissioner and, in turn, the Secretary of the Department, a monitoring plan covering projected monitoring activities for the ensuing 12 months.
5.81 The monitoring plan is developed by the Director of the Monitoring and Assessment Unit in a consultative process with Unit staff and other staff in the Commissioner's Office. Audit was advised that the factors taken into account in the development of the plan include the key areas of operational risk identified by the Unit's Director and other staff within the Commissioner's Office and any new areas of emphasis requiring attention, for example a change in policy or direction.
5.82 According to the Unit's Director at the time of the audit examination, the 1998-99 monitoring plan was aimed at providing reasonable coverage of the prison system. It reflected as priority tasks the continuation of the Port Phillip Prison default monitoring program, a transitional monitoring program for CORE after its planned corporatisation and the review of system-wide issues where consistency of practice was deemed to be important, such as prisoner discipline and the Community Custodial Permit Program. The year's plan also included the preparation of formal monthly, quarterly and annual reports which, as previously identified, are utilised as key records in the verification of the performance of prison operators against contracts.
5.83 While the annual monitoring plan does not identify key targets, such as anticipated completion dates for particular monitoring projects, the Unit's business plan incorporates relevant timelines.
5.84 The information presented below in Table 5D was prepared by the Monitoring and Assessment Unit and recently provided to audit. The table summarises the position at April 1999 in terms of progress against projects identified in the Unit's 1998-99 business plan.
Project Timeline Status
Participate in review of April 1999 Draft options paper standards and service prepared by Projects delivery outcomes. Planning and Standards Unit. Develop and implement CORE corporatisation not transitional monitoring implemented (a). program to complement revised organisational arrangements for CORE. Revise and issue Date of issue yet to Statistical profile to be performance tables be agreed with issued. comparing correctional Minister service providers. Develop an evaluation Feb./Mar. 1999 Not implemented; review framework to determine of monitoring model performance improvement. April 1999 commenced. Business Excellence Model distributed to first prison contractor finishing performance Nov. 1998 year in 1999 as item for discussion and progression for next performance year. Security Assessment framework facilitated with contractors. Conduct review of March/April 1999 Review documentation program provision to distributed to all prison prisoners. contractors for January 1999 discussion. Prisoner discipline May 1999 review conducted for minimum security prisoners. Maximum and medium to be reviewed. Review the Independent Project Planning and Now to be conducted as Drug Testing and Barrier Standards Unit. part of external Control Programs. evaluation of Turning the Tide Program. Project consultancies. Commence monitoring of February/April 1999 Surveyed all providers on providers in the ongoing the status of the Quality development of quality Assurance System. assurance programs to Distributed Business support the delivery of Excellence Model best practice in commencing April 1999. correctional programs. Establish a framework May 1999 Not separately completed for measuring value for expected to be addressed money in service as part of external delivery. evaluation of monitoring programs commencing in 1999. Revise and enhance data June 1999 Revised OCSC monthly collection processes reporting implemented. with providers and Very limited access to facilitate the data warehouse has been implementation of access made available to to the data warehouse by Monitoring and providers (this includes Assessment. the provision of training services to providers). Develop an investigation Commencing May 1999. Will be considered as framework to support the part of evaluation for comprehensive assessment monitoring programs. of significant performance issues and incidents.
5.85 A comparison of the information presented in
the above table with the
1998-99 monitoring plan shows that a number of tasks identified
in the monitoring plan are yet to be addressed for the year. Some
of these tasks are listed below:
5.86 While the 1998-99 monitoring plan was comprehensive and envisaged the undertaking of many monitoring tasks in important areas, audit considered that even in normal circumstances it would have been virtually impossible for the Unit to fully achieve its plan with just 5 operational staff available for full-time monitoring functions. The position during the year was, however, far from normal in that, as explained in earlier paragraphs, almost all of the monitoring resources available to the Commissioner would have been involved in the scrutiny of operations at Port Phillip Prison during the quarters ended June, September and December 1998 (these quarters covered the period following the March 1998 major disturbance at that prison).
5.87 It was very clear to audit that the limited monitoring resources available to date to the Commissioner make it imperative that annual monitoring plans reflect realistic goals based on resource capabilities and a systematic approach to the prioritisation of tasks.
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Strong focus to date on quantitative outcomes with little emphasis on those of a qualitative nature
5.88 As mentioned in an earlier paragraph, the Commissioner decided to take a staged approach to the task of monitoring the performance of prison operators. Under this approach, it was determined that the scarce resources available for initial monitoring of the evolving industry would be managed in a compliance-based manner, that is, there would be a strong focus on adherence by operators to contractual conditions, particularly those relating to compliance with performance criteria and contractual obligations.
5.89 In many respects, the compliance-based focus for monitoring of the industry complemented the structure of the contractual agreements entered into by the Government with the public and private prison operators. In this regard, the service delivery outcomes and agreed targets set out in the agreements (which impact on the level of annual performance remuneration to operators) are essentially quantitative in nature. In fact, virtually no outcomes with qualitative characteristics were incorporated within the contractual agreements. This aspect of the contractual framework for the prison industry is commented upon in more detail in Part 7 of this Report.
5.90 The emphasis both in the contractual provisions and monitoring direction on compliance and quantitative factors was presumably designed to ensure that the management and operational framework in place for the changed industry was adequately established and implemented before directing attention to qualitative matters. Relevant to this point is the fact that the Commissioner's staged approach to implementation of monitoring practices envisaged an increasing degree of self-regulation (and reducing direct monitoring involvement) within the industry as it matures.
5.91 In Part 7 of this Report, audit has identified that the current contractual arrangements do not adequately reflect, in terms of expected outcomes, all key aspects of the prison operators' performance. Examples of important areas of qualitative performance not addressed in outcomes specified in the agreements, and which are referred to in Part 7, are the quality of staff training and the outcomes from prisoner rehabilitation programs such as those associated with prisoner education. As a consequence, such key aspects of operators' performance are not routinely examined as part of the Commissioner's monitoring functions.
5.92 In discussions with audit, the Director of the Commissioner's Monitoring and Assessment Unit at the time confirmed that the emphasis on quantitative aspects of service delivery had been at the expense of qualitative evaluations of the performance of prison operators. At the same time, the Director indicated that such an approach was unavoidable given the circumstances.
5.93 In some situations, the Commissioner's Monitoring and Assessment Unit has identified trends in performance based on quantitative data and worked constructively with the private prison operators on avenues to improve performance in the related service delivery areas. However, any benefits arising from the Unit's initiatives are automatically constrained by the restrictive focus of the Unit in limiting its monitoring to the quantitative elements of performance set out in the service delivery outcomes.
5.94 It seems very important at this stage of the industry's evolution that the need to expand the range of service delivery outcomes expected of prison operators to incorporate key qualitative performance measures be given high priority. The Department will have the opportunity to address this key issue at the expiration of the period of each contractual agreement with the private operators and of the service agreement with CORE.
5.95 In fact, an optimum framework for measuring the effectiveness of prison management within the State will not be in place until an adequate mix of quantitative and qualitative service delivery outcomes has been agreed between the parties.
Serious issues identified by the Government in relation to Port Phillip Prison
5.96 Group 4 Correction Services Pty Ltd began operations at Port Phillip Prison on 1 September 1997.
5.97 During the first 5 months of operations at Port Phillip Prison, the Commissioner's Office identified poor performance against service delivery outcomes in the following areas:
5.98 Table 5E illustrates performance at the prison against the relevant service delivery outcomes for this 5 month period as recorded within the Commissioner's Office.
Target Actual
Service delivery outcome for SDO Performance
Prisoner deaths Nil (a) 3
Self-mutilations or attempted 19.2 49
suicide
Drug Testing (percentage testing 8% 13.8%
positive)
5.99 The Commissioner's Office followed-up these matters with the prison operator. However, the effectiveness of this follow-up action could certainly be questioned given that no prominence in the form of the need for corrective action was included in the Commissioner's quarterly and monthly reports to the Corrections Contracts Branch covering the period up to the end of January 1998 (the report covering the month of January was issued on 5 March 1998). Even though a material default by the operator represents grounds for reducing monthly payments, the Commissioner's recommendation in the reports was that there be no reduction in the level of payment made to the operator.
5.100 An additional factor influencing the lack
of prominence given by the Commissioner to the need for corrective
action in respect of the operator's
non-performance was an earlier assessment by the Commissioner
that the initial problems could be regarded as teething problems.
In this regard, the then Commissioner mentioned, in the first
quarterly assessment (issued on 12 December 1997) of the performance
of the operator at Port Phillip Prison "Whilst I am concerned
with the security breaches during the initial period I am satisfied
that Group 4 has in place extensive controls and processes to
address these initial teething problems". Also, the November
1997 monthly report on the prison operator, finalised on 19 December
1997 stated that "onsite monitoring reports indicate that
the teething problems previously identified are still continuing
...".
5.101 Nevertheless, and as would be expected, the circumstances prompted the Commissioner to initiate further investigative action. This further action did not encompass an analysis of reports arising from special investigations of each of the 3 deaths in custody which had occurred at Port Phillip Prison up to 31 January 1998 (the prison operator is required under both the Commissioner's standards and the contractual agreement to arrange for such investigations). In fact, the evidence available to audit showed that the Commissioner's formal analysis of such reports did not occur until July 1998 which was approximately 6 months after receipt by the Commissioner of the report arranged by the prison operator relating to the first death at the prison.
Major disturbance at prison - 11 and 12 March 1998
5.102 Subsequent events indicated that the problems experienced at Port Phillip Prison were more than just of a teething nature. In this regard, the performance of the prison operator continued to worsen. The Commissioner's report covering the period from December 1998 up to 28 February 1998 identified that "performance on self mutilations, drug testing and provision of substance abuse awareness remain significantly below the required outcome ... the incident profile includes numerous self harm issues, deaths (3) self mutilations/attempted suicides (37), numerous minor fires (13) and drug related incidents (126)...the level of incidents appears to be above what might be expected of a prison with a market share of all prisoners of about 21 per cent and with a profile of remand, sentenced and special needs prisoners".
5.103 The circumstances reached a point when, on the days of 11 and 12 March 1998, the prison experienced the extremely serious situation of a major disturbance.
5.104 Information made available to audit indicated that the disturbance occurred at approximately 9.00 p.m. on 11 March 1998, when a fire had been started in the unit officer's work station (within Scarborough Unit) creating an extensive amount of smoke within the unit and requiring the evacuation of prisoners from their cells. Officers from the Metropolitan Fire and Emergency Services Board, Victoria Police and the Metropolitan Ambulance Service were summoned to the scene.
5.105 Approximately 1 hour after having been evacuated from the unit, prisoners forced their way past prison staff and took control of the unit. Prisoners barricaded themselves in the unit and set about destroying doors and fittings. They also broke windows, threw a number of items out of the unit and armed themselves with makeshift weapons. The situation was finally resolved at approximately 5.00 a.m. on 12 March 1998. As a result of this disturbance, 48 cells were deemed unusable by the Commissioner's Office and 30 prisoners had to be urgently moved to Barwon Prison which in turn led to further movement of prisoners (an additional 70) across the system.
Establishment of Ministerial Task Force
5.106 Given the seriousness of this disturbing development, the Minister swiftly moved to establish a Ministerial Task Force to investigate the circumstances which occurred on 11 and 12 March 1998 at Port Phillip Prison.
5.107 The terms of reference for the Task Force investigation did not address the role of the Commissioner's Office in monitoring Port Phillip Prison in the months leading up to the disturbance.
5.108 The Task Force was chaired by the then Commissioner (from this point on the function of Commissioner was carried out by an acting Commissioner until the Government's recent external appointment). The other 3 members of the Task Force were:
5.109 The Task Force reported to the Minister in May 1998. Its report was highly critical of the operator's management of Port Phillip Prison. Some of the critical comments contained in the Task Force's report are set out below:
5.110 It can be seen from the above findings that the Minister was presented with a document which portrayed a most serious set of circumstances at the prison and directly questioned the ability and competence of prison management to deliver services to an acceptable standard. It is logical to assume that the degree of concern expressed by the Task Force would have prompted consideration of all available options, including the ultimate option outlined in the Prison Services Agreement where the Government could terminate the relevant contractual arrangement.
5.111 The Government chose not to take the extreme position of exercising its termination right but opted to work with the prison operator in an attempt to achieve effective resolution of all of the matters raised by the Task Force. It viewed this action as more prudent in the first instance before consideration of any intervention at the prison.
5.112 The official government reaction to the circumstances was to request the prison operator to develop an action plan to implement necessary changes and include a requirement that progress against the plan be monitored by the Commissioner over the ensuing months. This action plan addressed 59 separate areas identified as requiring remedial action at the prison.
5.113 The Task Force's report did not make any recommendations about the imposition of penalties (this matter was not included within its terms of reference). The position was taken that while the incident was a serious one, it would have to be managed in accordance with the contractual framework. Where performance continued to deteriorate or did not improve, the matter would be dealt with in the appropriate manner, i.e. through the contractual process.
5.114 In terms of financial penalties, the only reduction in payment to the prison operator arising directly from the disturbance at the prison related to the operator's inability to provide the specified level of accommodation services because of the damage to 48 cells at the prison. This reduction, the amount of which cannot be specifically identified, represented less than 0.2 per cent of the annual accommodation services charge payable to the contractor. Given that significant costs would have accrued to the Government in the form of the use of emergency services, the cost of the Task Force investigation and the urgent transfer of prisoners within the system, a financial penalty of less than 0.2 per cent of the annual accommodation services charge could be described as extremely low. Also, as mentioned in Part 7 of this Report, the penalty levied on the prison operator did not (because of the contractual provisions) cover the full period of 42 days (it covered just 12 days) during which the operator was not able to provide the level of accommodation services specified in the contractual agreement.
5.115 The expected improvement in performance at Port Phillip Prison during subsequent months did not materialise and in June 1998, following the furnishing of a Default Notice, the Government issued a Reduction Certificate under which the fees payable to the prison operator for the provision of prison services were reduced by 10 per cent covering the period from the time of the disturbance up to 31 May 1998. The fee reduction for this period as a consequence of the absence of any improvement in performance since the disturbance represented less than 2 per cent of the annual correctional services fee.
5.116 In addition, and as explained in Part 7 of this Report, the operator's annual performance linked fee was reduced in October 1998 by an amount representing 35 per cent of the maximum fee payable as a direct result of the prison operator's failure to meet specified service delivery outcomes. This reduction included some elements of non-performance arising from the March 1998 disturbance.
5.117 As an overall summary comment, audit considers that the circumstances described in the preceding paragraphs reinforce the significant risk which can accrue to government from extensive reliance on a monitoring approach which has a heavy emphasis on confirming compliance with performance targets of a quantitative nature.
The Commissioner's assessment of performance at Port Phillip Prison in the period since June 1998
5.118 The Commissioner's monthly and quarterly reports relating to Port Phillip Prison issued in the period since July 1998 were recently provided to audit. The most recent monthly report prepared by the Commissioner's Office covered January 1999 and was issued in March 1999. The latest quarterly report was furnished in February 1999 in respect of the period November 1998 to January 1999.
5.119 These reports indicate a gradual improvement in performance by the prison operator against the quantitative service delivery outcomes.
5.120 In the quarterly report covering the period August to October 1998, the then Acting Commissioner stated that "... in summary, there had been continuing improvement during the previous quarter. The improvements now need to be consolidated into consistent performance". The Acting Commissioner went on to say "... many of the problems at the prison appear to relate to failures in management and presentation problems rather than a failure to deliver services; however, without proper administrative records supporting service delivery, the OCSC could not validate that services are being delivered".
5.121 The Commissioner's comment in the most recent quarterly report of February 1999 covering the period November 1998 to 31 January 1999 was that "... performance results recorded for service delivery outcomes improved during the quarter and suggest that the contractor may achieve the required outcomes for correctional services for the full performance year subject to the comments detailed in this report".
5.122 It can be seen therefore that while, on the basis of reports issued up to February 1999, the Commissioner has identified progressive improvement in performance at Port Phillip Prison, the prison operator is still yet to satisfy the Commissioner that the prison is meeting all required service delivery outcomes.
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5.123 At 31 December 1998, the Commissioner's Office had an equivalent full-time staffing establishment of 60 positions and all staff were employed in the Office at that date.
5.124 The official staffing establishment of the Commissioner's Monitoring and Assessment Unit at 31 December 1998 was 9, all of whom were actually employed at that date. Of this establishment, only 5 staff are available for ongoing field monitoring work.
5.125 According to the Office's 1998-99 Business Plan, the Monitoring and Assessment Unit was allocated a budget of $601 000 for the year. This budgetary allocation represents just 0.37 per cent of the aggregate annual payments made by the State to the private and public operators for the provision of prison services.
Consideration of the adequacy of monitoring resources available to the Commissioner
5.126 The critical importance of the monitoring functions of the Commissioner within the prison industry has been emphasised in earlier paragraphs.
5.127 A useful starting point for audit in its consideration of the adequacy of the Commissioner's monitoring resources was an external consultant's report obtained by the Government in January 1995 as part of the initial planning for the evolving prison industry. One of the consultant's terms of reference was to "... propose structures and staffing requirements for the Office of the Commissioner, the public corrections agency [CORE] and for the private prisons contract administrator".
5.128 In relation to the Commissioner's monitoring function, the consultant made the following comments:
"The primary reason for the establishment of the Office of the Commissioner is to monitor the total system ... This function will require a skill mix which enables it to monitor and evaluate the performance of both public and private prisons ...
"The Commissioner needs an investigation and review function to ensure compliance with the standards he or she sets and to enable him or her to assess the performance of providers. The Commissioner should set standards for reporting on incidents which occur or investigations undertaken.
"In addition, both private and public operators will undertake their own internal investigations and reviews and report to the Commissioner on any incidents which occur and on investigations as determined by the Commissioner".
5.129 The consultant did not specifically recommend a resourcing level to handle the Commissioner's monitoring responsibilities. Nevertheless, it is fair to point out that the budget allocated within the Department at the time to its former Operational Review and Inspections Unit was $493 000 which indicates there has been an increase of just over $100 000 in the amount ($601 000) currently allocated to the Monitoring and Assessment Unit.
5.130 Audit examined documentation which identified that for some time the occupant of the position of Commissioner had formally advised the Departmental Secretary of the adverse impact of resource constraints on the effectiveness of the Office's monitoring function.
5.131 In a memorandum dated 4 August 1997, the then Commissioner advised the then Secretary that "... the 1997-98 monitoring program provides a minimal level of coverage of both the public and private sector prisons and the community based corrections and I do not consider the program to have sufficient resources given the maturity of the corrections industry". A further memorandum was forwarded by the then Commissioner to the then Secretary in September 1997 in which a request for additional resources was made.
5.132 Within the Commissioner's Office, the Director of the Monitoring and Assessment Unit wrote to the Acting Commissioner and formally requested on 21 January 1998 that resource levels for the Unit be reviewed as some planned programs such as reviewing death reports or commencing a pilot review of the minimum security prisons, would not be implemented. In earlier paragraphs within this Part of the Report, audit has commented on a significant delay within the Commissioner's Office in formally analysing reports on prisoner deaths at Port Phillip Prison.
5.133 As indicated by audit in an earlier paragraph when commenting on the Commissioner's independence, 3 staff from CORE have been involved in the monitoring process within the Commissioner's Office since January 1998 under a secondment arrangement. Audit was advised by the Director of the Monitoring and Assessment Unit that the primary reason for this secondment was to supplement the existing scarce resourcing and funding allocation available within the Office for monitoring of industry operations.
5.134 Although there are difficulties in comparing the quantum of resources available to an independent monitor and a service provider within the same industry (a monitor would automatically be much smaller than a service provider), audit observed that the resourcing levels in the Commissioner's Monitoring and Assessment Unit and in CORE's Continuous Improvement Unit were broadly equivalent.
5.135 While the Continuous Improvement Unit within CORE carries out a variety of functions, including an inspection function for deaths and major incidents, it seemed very unusual to audit that the Commissioner's resourcing capability for independent industry wide monitoring would be similar to that of just the continuous improvement function within CORE, the operator of the state owned prisons.
5.136 In discussions with the Director of the Monitoring and Assessment Unit, audit was advised that because of the intensity of key industry issues requiring attention, almost on a daily basis, staff within the Unit find little time for structured analysis. Accordingly, there has not always been enough time to identify trends or undertake monitoring activities of a qualitative nature which will add value to the prisons industry, such as identification of leading edge practices in prison management to facilitate ongoing enhancement to the industry standards formulated by the Commissioner.
5.137 Clearly, as is the case with all areas of the Department and indeed all areas of the public sector, the Commissioner's Office has the responsibility of ensuring that maximum efficiency and effectiveness are derived from its management of limited available resources. No organisation has an undeniable right to receive budgetary increases.
5.138 Nevertheless, the nature and absolute importance of the Commissioner's role, particularly if it is operating in a truly independent manner, makes it imperative that the Department is always assured that the Commissioner's Office is adequately resourced to effectively meet its vital statutory responsibilities of monitoring industry performance. From the Government's perspective, an adequately resourced and effective industry monitor would be a vital source of independent assurance on the level of progress achieved in meeting its objectives for the prison industry.
5.139 On the basis of the matters addressed in this Report, audit considers that the quality of resource management within the Commissioner's Office and the level of resources allocated by the Department to the Office, require urgent attention.
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5.140 Unlike the preceding 6 desirable features of an effective monitoring regime for the industry, this final feature extends beyond the Commissioner's Office to also encompass other government agencies with either a responsibility or a role within the industry. These agencies comprise:
5.141 In addition, the Official Visitors Program, which is managed by the Commissioner's Monitoring and Assessment Unit, has the objective of providing a system of independent advice to the Minister for Corrections with respect to the operation of the prison system.
5.142 The above activities serve to complement the accountability processes embodied in the contractual agreements with prison operators and to give the community confidence in the management of the industry. Their existence also demonstrates to the community that, although the Commissioner fulfils the key role in overseeing the activities of the prison system, there are additional avenues in place for individuals to provide input or receive assurance on the safe custody and welfare of prisoners.
5.143 It also should be recognised that several hundred members of the community visit prisons every day for a variety of reasons (family members visiting prisoners etc.) and are exposed to varying degrees to aspects of prison operations. These members of the community may wish at some stage to pass on information to an external agency on any matter they may become aware of arising from their visits to prisons.
The Ombudsman
5.144 It is the objective of the Ombudsman, in relation to the prison system, to ensure that the existence of the Office is known to prisoners and that it is easily and readily accessible to prisoners.
5.145 Orientation procedures at the Melbourne Assessment Prison, which is the initial point of entry for prisoners when they are first taken into custody, include the provision to prisoners of information relating to the manner in which prisoner complaints are handled by the Ombudsman's Office and the process for lodging a complaint. Also, this information is available to prisoners at all prisons.
5.146 During 1996-97, in recognition of the changing structure of the prison industry, the Ombudsman introduced more frequent visits to prisons by members of staff who make themselves available for consultation with any prisoners who wish to see them. To ensure prisoners have full and free access to the Ombudsman's staff, notices are posted at prisons advising of impending visits by the Ombudsman's Office. During 1997-98, staff of the Ombudsman's office visited all Victorian prisons at least once, with a total of 39 visits across the system. Complaints concerning health services within prisons can be lodged with the Health Services Commissioner or with the Ombudsman who then refers them to the Health Services Commissioner. Prisoners dissatisfied with the Health Services Commissioner's handling of complaints may refer the issues to the Ombudsman for review.
5.147 Of all the areas falling within the responsibility of the Ombudsman, complaints received by the Ombudsman's Office in relation to the prison system represent the largest source of complaints made to the Office. Table 5F shows the number and nature of prisoner complaints made to the Ombudsman over the last 3 financial years.
Subject of complaint 1995-96 1996-97 1997-98
Medical treatment 35 34 105 Classification/protection 39 62 74 Mail/phones 17 50 61 Lost property 39 48 60 Visits 39 51 59 Employment/funds 24 25 51 Drug testing 48 20 39 Charges/hearings 34 26 30 Buildings and facilities 19 20 28 Other 193 251 280 Total 487 587 787 Percentage of total non-police complaints received by the 17% 19% 27% Ombudsman's Office
5.148 The Ombudsman's Office advised audit that the main reasons for the increase in prisoner complaints could be attributed to:
5.149 The Ombudsman has advised that regular consultation takes place with the Correctional Services Commissioner and representatives of all prison providers. The Ombudsman pursues policy issues relating to the system with the Commissioner and seeks to ensure that prisoners are provided with a consistent set of rules and procedures regardless of where they are detained. During 1997-98, 4 prison issues were examined at the initiative of the Ombudsman and related to:
Monitoring of health services provided to prisoners
5.150 Responsibility for monitoring the provision of health services in prisons rests with the Department of Human Services through its Prisoner Health Care Monitoring Unit.
5.151 The Monitoring Unit is responsible for:
5.152 Two employees within the Monitoring Unit have specific responsibility for overseeing the delivery of health services to prisoners.
5.153 The following 3 health-related service delivery outcomes are set out in the contractual agreements entered into by the prison operators:
5.154 The monitoring of prisoner health care services by the Department of Human Services is carried out primarily through the checking of prison records to measure compliance with the above-mentioned service delivery outcomes. In addition to this compliance monitoring, the Department's Monitoring Unit commissions a range of health care professionals to examine specific clinical areas, for example, use of medication among prisoners. The results of these activities are then discussed with the health care providers and agreement reached on how issues will be resolved. The Prisoner Health Care Monitoring Unit then monitors the progress of these matters and provides a monthly report to the Commissioner.
5.155 Information relating to the performance of prison operators against the health-related service delivery outcomes set out in the contractual agreements is provided in Part 8 of this Report.
Results of 1998 prisoner survey
5.156 During 1998, the Monitoring Unit carried out a Prisoner Health Care Satisfaction Survey. This survey, which was undertaken in all prisons other than the Melbourne Assessment Prison during March 1998 covered 10 per cent of all prisoners and aimed to determine the views of prisoners on the quality of health services provided in prisons.
5.157 The Department of Human Services planned to publish the results of the survey in early 1999. However, the Department has advised audit that "... health care providers have been informed of some of the preliminary findings. A key finding of the survey is the need for prisoners to receive more information regarding their treatment/medication/condition. A review of minimum standards (especially for dental) has been planned and some initial work (ie investigating community standards) has been undertaken".
Complaints register on health services within prisons
5.158 Complaints concerning health services within prisons can be lodged with the Ombudsman, who then refers them to the Health Services Commissioner, or directly with the Prisoner Health Care Monitoring Unit by the prisoner or a third party, e.g. a legal representative, professional body, family member etc.
5.159 The Office of the Health Services Commissioner was established in Victoria in 1988. The 1997-98 Annual Report of the Department of Human Services states that the Commissioner's role is "... to receive, investigate and resolve complaints from health service consumers, to support health care services in providing quality health care and assist them in resolving complaints. The legislation also requires that information gained from complaints should be used to improve the standards of health care and prevent breaches of these standards".
5.160 Since April 1998, the Monitoring Unit has maintained a register of all complaints received in respect of prisoner health services. Table 5G shows relevant details.
Area of treatment
Year General Dental
medical
1998 24 7
1999 (to 31 14 -
March)
5.161 The Department of Human Services has a role in facilitating the investigation of complaints made to the Health Services Commissioner. The Department advises the Commissioner for Correctional Services when a complaint is valid against an operator's service delivery outcome relating to complaints. The Department advised audit that it had referred 1 complaint to the Commissioner's Office for its consideration.
Status of accreditation of delivery of health services in prisons
5.162 Apart from Fulham Correctional Centre which operates its own health service, the delivery of health services in the State's prison system is contracted-out by each prison operator to an external service provider.
5.163 All health service providers within prisons are required under contractual agreements to seek accreditation of their services from an authority agreed with the Prisoner Health Care Monitoring Unit (in the case of Port Phillip Prison, accreditation must be obtained from The Australian Council on Healthcare Standards for the prison's secondary and tertiary medical services within 2 years of commencing operation).
5.164 As presented in Table 5H, all Victorian prisons other than Port Phillip Prison (which recently received accreditation) are yet to obtain accreditation.
Prison Due date for Status as at April
accreditation 1999
Port Phillip Prison September 1999 Accredited in February
1999
Metropolitan Women's August 1998 Not accredited
Correctional Centre
Fulham Correctional April 1999 Not accredited
Centre
CORE prisons January 2000 Not accredited
5.165 If providers do not seek accreditation, they must satisfy the Prisoner Health Care Monitoring Unit that they have obtained an alternative and acceptable form of accreditation. For example, Fulham Correctional Centre has sought an exemption because it has achieved ISO 9002 quality accreditation. The Unit does not consider this particular accreditation to be sufficient in itself because it is not "medical" specific. The Unit has discussed this issue with the prison operator at Fulham who is now seeking accreditation with The Australian Council on Healthcare Standards in addition to the ISO 9002 accreditation.
5.166 The Metropolitan Women's Correctional Centre has passed its 2 year anniversary and, therefore, should now be accredited. Such is not the case as the prison operator has argued to the Unit that the 2 year period should be calculated from the time its current contracted provider commenced delivery of health services. The Unit has responded by scheduling 3 clinical audits during 1999 to ensure that the services are acceptable while giving the prison operator time to resolve its accreditation position. The 3 clinical audits have been planned to focus on general health, psychiatric services and medication.
5.167 With regard to the State-managed prisons within CORE, all of which do not yet have accreditation, the Monitoring Unit advised audit that it will be conducting general clinical audits of health care services at these prisons and monitoring their progress towards accreditation.
5.168 Prior to the entry of private operators into the prison system, accreditation of prison health services was not a specific requirement. As with other accreditation processes, the seeking of accreditation of health services has required the relevant service providers within prisons to implement significant quality assurance procedures for their services.
Victoria Police Prisons Squad
5.169 As mentioned earlier, the Victoria Police Prisons Squad is solely concerned with prison operations, particularly criminal investigations and intelligence gathering within the State's prison system. The Squad is a specialist investigative body within the Criminal Investigation Branch of Victoria Police and comprises 10 operational detectives and 1 analyst.
5.170 The Squad's charter is to:
5.171 The Correctional Services Commissioner requires that prison operators report all deaths in custody to the Prisons Squad. Informal reporting protocols apply in relation to incidents associated with other matters identified in the Squad's charter.
5.172 The Squad advised audit that it is adopting a more pro-active approach to the reporting of incidents in prisons, given its assessment of the position in the following areas:
5.173 Currently, the Squad is developing a formal protocol regarding incident reporting and related information gathering strategies for use by all providers of prison services. The importance of this initiative by the squad is reinforced by the fact that, while the contractual agreements require that prisoner deaths must be reported to Victoria Police, the agreements are silent on the question of reporting of other data such as notifiable incidents to Victoria Police.
Official Visitors Program
5.174 Under section 35 of the Corrections Act 1986, the Minister may appoint Official Visitors for each prison. While the legislation does not specify the role or functions of Official Visitors, a briefing note to the Minister on 15 January 1997 from the Correctional Services Commissioner stated that the "... purpose of the Official Visitor Scheme [program] is to provide independent advice to the Minister on the operation of the prison system and to improve links between prisons and the community".
5.175 The Official Visitors Program commenced in 1986 and since June 1998 has formed part of the responsibilities of the Monitoring and Assessment Unit within the Commissioner's Office.
5.176 Following a public advertisement and interview selection process Official Visitors are appointed by the Minister for a period of 2 years. The appointment can be extended by mutual consent. Official Visitors have free access to their assigned prison and prisoners to listen to any concerns raised by them. They are free to take any issues up with the prison management and pursue it through the Commissioner's Office if they are not satisfied with the response.
5.177 Official Visitors are expected to provide a written report to the Commissioner's Office following each prison visit.
5.178 The work of Official Visitors within the prison industry has been described in the Official Prison Visitor Scheme Information for Applicants document as the "eyes and ears of the Minister ... and the link between the prison and the community".
5.179 Each prison has at least 1 Official Visitor, with up to 3 at the larger prisons such as Port Phillip Prison and Fulham Correctional Centre.
Scope for enhancing the effectiveness of the Official Visitors Program
5.180 Without intending to adversely reflect on the performance of any individual Official Visitor or undermine the valuable work of volunteers in the community, audit formed the view that there was some scope for further enhancing the effectiveness of the Official Visitors Program. In this regard, audit identified that:
5.181 The Department has recently advised audit that since the audit examination it has embarked upon a number of actions aimed at further strengthening the operation of the Official Visitors Program.
5.183 While the work undertaken by these other government
agencies reinforces in a general sense the overall accountability
of the prison industry, there has been to date very limited information
communicated to the Parliament by the Department in its Annual
Report which deals with its management and monitoring of the
industry. By way of illustration, material on the prison industry
included in the Department's
1997-98 Annual Report was restricted to statistical information
on prisoner places in the system, average annual operating cost,
daily average prison population, average daily prison occupancy
rate, the number of escapes by prisoner security rating and the
number of working prisoners.
5.184 In audit opinion, this limited range of information falls far short of the level necessary to effectively discharge the Department's accountability obligations to the Parliament and community for overseeing the operation of an industry with annual outlays of taxpayers' funds in excess of $180 million. It also compares quite unfavourably with the degree of public reporting on prison operations by other Australian jurisdictions.
5.185 In addition, for the past 3 years, the Commissioner's Office has drafted a Statistical Profile of Victorian Prison for intended public release. Up until very recently, the Department had determined not to approve for public release the material prepared by the Commissioner's Office. On this point, the Department advised audit that its decision not to release data should not be interpreted as a disregard for the public's right to know. It indicated its decision should be viewed as one "... based more on a desire, during a period of transition, to consolidate the data into a reliable form prior to release". On 17 May 1999, the Commissioner publicly released the statistical report covering the period 1995-96 to 1997-98 inclusive which had been prepared in September 1998.
5.186 Audit considers that the reporting to the Parliament by the Department each year on the performance of the prison industry should encompass, inter alia:
5.187 In summary, the Department should move to incorporate in future Annual Reports more extensive information along the lines suggested as a key means of discharging the Government's accountability to the Parliament for the operation of such a significant State industry.
- RESPONSE provided by Secretary, Department of Justice
Role of the Correctional Services Commissioner
The Department does not accept audit's proposal that the Commissioner should have an independent role similar to that of the Regulator - General, nor does it believe that the current structure, roles or responsibilities compromise the integrity of the Commissioner's industry leadership role, nor its monitoring and review responsibilities.
The Commissioner's role is far more expansive than that of simply a corrections industry 'watchdog'. The Commissioner provides leadership to the whole adult corrections system in Victoria, and supports that role through an appropriate focus on policy and standard setting, business planning and strategic development, monitoring and review of public and private service providers, and management of the sentence management function.
Audit's call for an independent Commissioner's Office arises primarily from discussion on the Office's monitoring role. If this role were split off to a separate entity it would result in serious dysfunction in the leadership and management of the correctional system. If all the Commissioner's present functions were assigned to an independent entity, it would place in doubt the capacity of the Government to maintain a cohesive and viable corrections system. It is a model that does not exist in any other correctional system.
Data validation
Audit correctly acknowledges the importance of data validation and the extent of activity the Commissioner has applied, and continues to apply, to this task to ensure that the data collected by providers, both public and private, and supplied to the Commissioner is both accurate and complete.
Unfortunately, audit has in its analysis wrongly suggested that Port Phillip Prison has experienced some unique problems with data validation and drug testing procedures. While some problems have been experienced by Port Phillip Prison, it is unreasonable and misleading for audit to suggest that these problems were unique to or experienced at a greater level, at Port Phillip Prison than by other providers.
Data validation requires all providers to ensure consistent understanding, interpretation and application of definitional issues and counting rules. All providers, including Port Phillip Prison, took some time to fully understand and comply with the Commissioner's requirements. The difficulties experienced by Port Phillip Prison were no greater than with other providers. In fact, a validation review by the Commissioner of Port Phillip Prison conducted in August 1998 on service delivery outcomes identified very few inaccuracies. Further, Port Phillip Prison is highly compliant with the Commissioner's daily reporting requirements relative to some other providers.
Similarly, audit has extracted details from the Commissioner's drug testing program at Port Phillip Prison and quotes accurately from the reports of the Commissioner's Office and the findings of an audit assessment by Price Waterhouse Coopers. However, what audit fails to acknowledge in its observations is that the Price Waterhouse Coopers results for Port Phillip Prison were comparable with results in other prisons and that systemwide improvement was required.
- Price Waterhouse Coopers (PWC) were engaged by the Commissioner in early 1997 to:
- attend selected prison locations to observe the prison's random drug testing collection on days when the Commissioner's independent drug testing is not taking place;
- attend the prison to observe on a day when the Commissioner's independent drug testing collection is taking place; and
- provide a report on the drug testing process to ascertain compliance with the Victorian Prisons Drug Strategy.
PWC has now attended nearly all prisons, public and private. No prison, even Victoria's public prisons, which have had a greater degree of experience in relation to the acquisition of urine samples, was fully compliant. All prisons were identified as requiring some improved practice, for example, in relation to the briefing of prisoners, strip searching procedures and prisoner identification of samples.
Feedback on the findings of PWC's assessments has been forwarded to providers with a view to establishing a higher level of consistency in operational procedures and achieving continual improvement and compliance with the Government's Prisons Drug Strategy.
Monitoring and review program
The Commissioner's monitoring and review program was implemented to complement the re-organised corrections industry. The nature and scope of monitoring and review activities was originally tailored to the lack of maturity of the industry. As such, at the time of the audit, its regulatory paradigm was more interventionist and prescriptive than was envisaged would be the case in a more mature (6-8 years old) market, in which a validated self-regulatory model was anticipated.
Audit's examination of the Commissioner's monitoring and review function occurred when the model was in a very early stage of its evolution. Intensive compliance monitoring of key contract conditions of the newly established private prisons was given a higher priority than the minimal monitoring which audit correctly identifies was directed to the more established and experienced public provider (CORE). The Department considers that this focus on the private providers was both appropriate and necessary at the time.
In the future however, the Department will apply a consistent and balanced treatment of all prison operators and other parties, including CORE, by ensuring a systemwide standard monitoring approach is in place.
While it is acknowledged by audit that the Commissioner has to date devoted considerable resources to compliance monitoring of performance against contracted service delivery outcomes, the Department believes audit failed in their report to properly acknowledge:
- the equally important and resource intensive on-site monitoring and review undertaken by the Commissioner during the audit period. This function was undertaken by skilled and independent monitors with operational knowledge and experience who inspected a wide range of aspects of prison performance and adherence to correctional services standards in relation to such issues as reception/admission, prison security, drug testing, disciplinary process, industries, incident reporting and personal visits. Monitoring also instigated reviews of incidents and prisoner complaints. Audit's suggestion that data validation was the primary purpose for on-site activity is incorrect and understates the vital and effective review function of on-site monitoring;
- the rigorous annual accommodation services reviews conducted at private prisons by representatives from the Department's Major Projects Delivery Group, the Building Services Agency and the Commissioner, in accordance with requirements contained in each of the Prison Services Agreements. Two reviews each have already been undertaken at the Metropolitan Women's Correctional Centre and Fulham Correctional Centre, and one at Port Phillip Prison; and
- the Commissioner's plans to review and further enhance the performance of the corrections industry through the application of a corrections quality assurance framework.
Port Phillip Prison
The Department acknowledges that Port Phillip Prison experienced significant performance issues in its first fifteen months of operation.
Port Phillip Prison underwent a start-up period in which prisoners were gradually introduced into the prison. Start-up covered a twelve week introduction period to accommodate the large capacity of the prison and the wide range of prisoner categories (eg, protection, psycho-social, remand and sentenced).
As with the start-up phase of the other two private prisons, a number of service delivery issues were identified by the Commissioner's Monitoring and Review Unit. These issues were worked through between monitors and prison management throughout this period.
The Department recognises that while many of these problems were addressed by prison management, not all issues raised were satisfactorily resolved. Incidents such as prisoner deaths gave real cause for concern.
The Department continued to monitor prison performance and provide regular feedback to prison management. As an example, an in-depth review was undertaken in January 1998 by the Commissioner of prison suicide and self-harm strategies. The Department continued to work with prison management with a view to continuous improvement.
By June 1998 the Department considered that while many aspects of prison performance had improved, some important issues remained of concern. A Default Notice was then issued under the Prison Services Agreement by the Acting Secretary.
While audit argues with the level of the Correctional Default Notice fee reductions imposed upon the Port Phillip Prison contractor, it must be understood that these reductions were in respect of a three-month period only, from March to end May 1998. A cure plan was prepared by the contractor, which addressed actions in respect of the non-compliance issues. Pursuant to the terms of the Prison Services Agreement, the reductions were terminated upon endorsement of the plan by the Commissioner. An extensive monitoring regime accompanied the implementation of the plan to ensure resolution of the service non-compliance issues identified.
Further, audit's discussion on the costs to the contractor fails to acknowledge the significant costs borne by the contractor/operator in addressing the Correctional and Accommodation Services issues identified in the Notices. That is, the Prison Services Agreement provides that all costs associated with the rectification of non-compliance issues identified as defaults are to be borne exclusively by the contractor/operator. Such costs included the rectification of the building damaged in the March 1998 incident, significant supplementation of senior staff from overseas operations for an extended period, and the costs associated with procedural changes.
By late 1998 all service non-compliance issues were resolved by the operator, and a period of strong improvement was noted in the prison's performance, By November 1998 a full-time monitoring presence was no longer considered necessary. The Default Notice was finally cured in a letter from the Minister for Corrections to Port Phillip Prison on 10 March 1999.
The Department considers that Port Phillip Prison is presently providing service delivery consistent with the high level expected throughout the Victorian prison system.
Public information about Correctional Services
The breadth of the Justice Portfolio necessitates high level reporting only in its Annual Report against its key output groups.
The Statistical Profile of the Victorian Prison System 1995-96 to 1997-98 was released in May 1999. Prepared by the Commissioner, this publication presents data on the performance of Victoria's prisons and profiles the major characteristics of the prisoner population. The Department recognises that the release of systematic and comprehensive performance data is a key accountability component of the reformed corrections industry. It is intended that this "report card", which will be issued on an annual basis, will further build a performance culture within the industry by presenting a benchmark against which future performance can be compared, and contribute to informed and balanced debate about the prison system.
