Title: Breaches of Discipline
Category: Custodial Operations - Standard Operating Procedures
Implement Date: 29 August 2013
Application: Custodial Operations
Appendices and Forms
Associated Custodial Operations Standard Operating Procedures
QCSA Training Manual
Ownership: Custodial Operations
|2.||Acts or Omissions That Constitute a Breach of Discipline|
|3.||Officer's Report to be Prepared|
|4.||Decision to Take Formal Action|
|4.1||If a CoP referral is made|
|5.||When Alleged Breach Referred to the CoP|
|5.1||Process if CoP advises will not be prosecuted as an offence|
|7.||Consideration to Treat as Minor or Major Breach|
|7.1||Relevant factors to consider|
|7.2||If act or omission had previously been referred to the CoP|
|7.3||If act or omission had not previously been referred to the CoP|
|8.||Commencing the Breach Process|
|8.1||Signing breach register|
|8.2||Date to be recorded on IOMS|
|8.3||Transfer of prisoner where a breach of discipline has not been finalised|
|9.||Documents to be Given to Prisoner|
|9.1||Prior to breach of discipline hearing|
|9.2||When breach of discipline process formally commences|
|9.3||Upon finalisation of the breach of discipline process|
|10.1||Consideration of any special needs of the prisoner|
|10.2||Relevant factors to be considered|
|10.3||Making and documenting a decision that a prisoner has committed a breach|
|11.||When a Hearing Officer Determines a Prisoner Has Committed a Breach of Discipline|
|11.1||Prisoner to be notified immediately of decision|
|11.2||Separate confinement pre-conditions for minor breaches|
|11.4||Positive drug test|
|12.||Review of a Deciding Officer's Decision|
|12.1||Relevant factors of consideration for a reviewing officer|
|12.2||Making and documenting a review decision|
|13.||Electronic Visual and Audio Recording of Major Breach Hearings and Reviews|
|14.||Where Breach Proceeding Discontinued|
|15.||Regulation 6(K) Breaches of Discipline|
|16.||Accommodation in a Detention Unit|
|16.1||Prisoner access to recreational or general equipment|
|16.2||Duties of officers carrying out duties in a detention unit|
|16.3||Log book requirements - application of restraints|
|16.12||Electronic visual and audio recordings|
|16.13||Code of conduct|
|17.||Quality Assurance of Breach of Discipline Process|
Breach proceedings are fair, transparent, consistent and without bias with the dignity and rights of prisoners; including those with different beliefs, cultures and religions; respected.
Proceedings are in accordance with -
Safety & Security - Our Principles - Containment
4. Prisoner discipline
We will provide consistent, fair and transparent processes and consequences regarding prisoner discipline.
Refer - Safety and Security - Our Principles (in-confidence)
Chief Inspector Healthy Prisons 2007 Standard 22 - Discipline
Disciplinary procedures are applied fairly and for good reason. Prisoners understand why
they are being disciplined and can appeal against any sanctions imposed on them.
Refer - Healthy Prisons Handbook
Standard Guidelines for Corrections in Australia Standards 1.17 to 1.76 - Punishment of Prisoners.
Refer - Standard Guidelines for Corrections in Australia Revised 2004
Corrective Services Act 2006, ss. 113-120, 121, 265
Corrective Services Regulation 2006, s. 6, 5(d)
Refer - Corrective Services Act 2006 (CSA), ss. 113-121 and standard operating procedure Administrative Decision Making.
The disciplinary process must provide a prompt, non-adversarial mechanism to deal with alleged internal disciplinary breaches by prisoners. All acts or omissions must be dealt with separately and based on the circumstances of each individual occurrence.
Only permanently appointed correctional supervisors accredited in hearing major breaches and approved by the General Manager or Deputy General Manager or more senior officers may decide a major breach of discipline. This is to ensure transparency and independent decision making for breach hearings. Refer - Instrument of Limitation of Corrective Services Officers' Powers (in-confidence)
Refer appendix - Breach Process Flowchart.
A prisoner undergoing separate confinement must be given the opportunity to exercise, in the fresh air, for at least two daylight hours a day, refer CSA, s 5(d)
Separate confinement, in relation to a prisoner, means the separation of the prisoner from other prisoners. Refer CSA, schedule 4
If a prisoner allegedly commits an act or omission which could be dealt with as an offence or as a breach of discipline, the officer observing or becoming aware of the act or omission must complete an officer's report detailing the circumstances of the act or omission. If an incident report is raised on IOMS, the officer's report must be attached, refer IOMS Online Learning Materials - Add New Incident.
An officer observing or becoming aware of a breach of discipline must decide whether to -
Prisoners should not be automatically transferred from a residential accommodation to secure accommodation area once a breach is initiated. If a breach of discipline is considered to be of a minor nature the prisoner may continue to reside in the residential accommodation area.
If it is determined that the matter is to be referred to the CoP for consideration, the prisoner must be advised verbally by an officer within 24 hours of this determination. The time and date of verbal notification must be recorded in the incident recorded on IOMS, refer IOMS Online Learning Materials - Incidents.
The CoP must be advised of the matter within 48 hours after the prisoner has been advised that the matter will be referred to the CoP.
An officer must not commence proceedings (section 8 of this standard operating procedure) against a prisoner for an alleged breach of discipline if the matter was referred to the CoP under CSA s. 114(2)(b), unless the CoP has advised that the matter is not to be prosecuted as an offence.
Refer - CSA ss. 113(4)-(5), 114(2)(b); Instrument of Delegation of Chief Executive Powers - Corrective Services Act 2006 (in-confidence)
If the matter was referred to the CoP and the CoP advises the chief executive or delegate that the matter will not be prosecuted as an offence, as soon as practicable, but within 14 days after the chief executive or delegate receives the advice, a breach hearing must make a decision (ie. 14 days in which the breach hearing must occur commences from the time CoP advice has been received by a QCS officer).
The general manager of the corrective services facility must establish a process of monitoring the return of incidents for breach action from the CoP.
Refer - CSA s. 116(2)(a)
For example -
An act or omission has been referred to the Corrective Services Investigation Unit (CSIU) under CSA s.114(2)(b) via an IOMS incident report. CSIU communicate a decision not to prosecute to the corrective services facility on a Friday via the IOMS incident report but an officer at the facility first becomes aware of this on the following Monday morning. The 14 day period in which a breach decision must be made commences from the Friday, ie. the day the advice was received.
All incidents regarded as minor which do not constitute an offence or breach of discipline, should be addressed by the relevant field supervisor, usually through individual counselling and the completion of a Behaviour/Performance Report.
When an incident involves a prisoner allegedly committing an offence or breach of discipline the field supervisor must advise the responsible manager, in person or by telephone, as soon as practicable and provide a written report to the manager, by end of duty on that day, or sooner, as required by the manager.
The manager must contact the general manager of the corrective services facility to which the respective work camp is aligned as soon as possible if the responsible manager has any concerns regarding the management and supervision of the prisoner and whether the prisoner's placement needs to be reviewed.
The officer observing or becoming aware of a breach of discipline must inform the prisoner that the matter will be dealt with as a minor breach or a major breach.
When determining whether a breach of discipline should be dealt with as a minor or major breach, the officer observing or becoming aware of the breach should consider -
If a breach of discipline referred to CoP under CSA s.114(2)(b) is not to be prosecuted as an offence, it may only be proceeded against as a major breach of discipline, refer CSA s. 113(5).
If the matter was not referred to the CoP, a decision on the commencement of breach proceedings must be decided for a minor breach of discipline within 24 hours after the time the alleged breach happened
If the matter was not referred to the CoP, a decision on the commencement of breach proceedings must be decided for a major breach of discipline as soon as practicable, but within 14 days, after the deciding officer becomes aware of the alleged breach.
Refer - CSA ss. 1116(1); Instrument of Limitation of Corrective Services Officers' Powers (in-confidence) - Corrective Services Act 2006
For example -
An officer gives a direction to a prisoner to tidy his/her cell and minimise the amount of property. The prisoner refuses to do so. The officer informs the prisoner he/she will be breached and completes the required documents. The major breach hearing for the prisoner is to commence within 14 days of the deciding officer receiving and becoming aware of the breach.
An education tutor writes a report to the General Manager of the facility who reads the report some weeks after and determines that a breach has occurred. The breach hearing is to occur within 14 days of the General Manager of the facility becoming aware of the fact.
If the matter was referred to the CoP under CSA s. 114(2)(b), the breach process is not to commence unless the CoP has advised that the matter is not to be prosecuted as an offence.
Refer administrative form - Breach Process Checklist.
The officer observing or becoming aware of a breach of discipline must -
The breach register must be checked and endorsed by an officer who has been delegated to decide or review major breaches of discipline at a minimum of twice per week.
The date of the breach of discipline recorded on IOMS must be the date on which the act or omission occurred. For example -
A prisoner provides a test sample on the 1 January 2010 and the presumptive test indicated that the sample contains methylamphetamine. The sample is re-tested by the laboratory and confirmatory testing received on 1 February 2010 indicates the presence of methylamphetamine. The date the alleged breach occurred in IOMS must be 1 January 2010. The Awareness date in IOMS would be 1 February 2010. This matter would be referred to the CSIU. If the CSIU notify the centre they will not be prosecuting the prisoner, the deciding officer, within 14 days must hold a breach hearing and make a decision..
The general manager of a corrective services facility must establish a process that ensures prisoners transferred prior to the finalisation of a breach of discipline process, including those referred to the CoP, have notification of the pending breach action communicated to the receiving corrective services facility prior to the transfer of the prisoner.
A print-out from IOMS of the Form 23 - Breach of Discipline completed up to and including Part A must be given to the prisoner by a corrective services officer. The Form 23 must be provided to the prisoner before the breach hearing with the prisoner provided sufficient time to read and understand all documents. The prisoner must be provided the opportunity, if requested, to prepare a response in their defence on any mitigating circumstances for the breach hearing. Further, the prisoner is to be informed of their right to make submissions in their defence.
The prisoner is to be advised in writing of the method in which they may reliably obtain a copy of the legislation prior to the breach hearing.
The date and time that a copy of the Form 23 - Breach of Discipline was given to the prisoner must be documented on the Form 23. A corrective services officer is to sign both the prisoner's copy and the original.
The breach process formally commences when the prisoner is handed the Form 23.
When the breach of discipline process has been finalised and recorded in the breach of discipline raised in IOMS, a copy of the IOMS breach of discipline is to be printed and provided to the prisoner, refer CSR, s 7.
Refer appendix - Guidelines For Hearing a Breach of Discipline
A hearing (deciding or reviewing) officer must conduct a hearing to decide whether a breach was committed.
Officers conducting disciplinary hearings must assess the language and comprehension skills of the prisoner and ensure that the prisoner understands the proceedings.
Where a prisoner may be disadvantaged by language barriers or impaired mental capacity they may be helped by someone from the facility.
The hearing officer must give the prisoner the opportunity to make separate submissions in their defence on any mitigating circumstances. [If in the event that a prisoner states the referring officer did not comply with an Agency procedure or process, this must be recorded on the Form 23 eg. non compliance with substance testing procedure].
Refer CSA ss. 116 and 119(1); Instrument of Limitation of Corrective Services Officers' Powers (in-confidence)
The following factors are relevant to a hearing officer -
Further, the hearing officer must ensure that the language used to communicate to the prisoner ensures that they understand their right to make those submissions.
Taking all factors into consideration including the officer's report, the prisoner's version of events, any mitigating evidence the prisoner may offer and the questions asked to the prisoner. The hearing officer will then make a determination on the penalty. If the breach is a major breach, the process must be electronically recorded (refer CSA s. 117(1)).
Hearing officers must record adequate reasons for their decision on the Form 23.
On completion of the breach determination process, details of the breach must be entered and approved in IOMS and also recorded in the Disciplinary Breach Register. The completed Form 23 must be scanned and attached to the IOMS Breach of Discipline under the “Attachments” tab, refer IOMS Online Learning Materials - Breaches.
The following data must be entered into IOMS under the 'comments' section -
Refer administrative form - Example of a Disciplinary Breach Register
When a hearing officer determines a prisoner has committed a breach of discipline, consideration should be given to the following factors -
Refer appendix - Guidelines For Hearing a Breach of Discipline
The hearing officer may -
Refer CSA s. 118
Immediately after making a decision that a prisoner has committed a breach of discipline and a penalty has been determined, the hearing officer must tell the prisoner the decision. Where the decision was made by a deciding officer the prisoner must also be advised -
Separate confinement may be ordered for a minor breach of discipline only if the prisoner has habitually committed minor breaches of discipline and, on the occasion of the breach immediately preceding the alleged current breach, was warned that the next breach could result in the prisoner being separately confined.
The payment of restitution is not to be considered by a deciding or reviewing officer in the breach process. This is a separate process delegated to the general manger or deputy general manager. Refer procedure - Prisoner Monies, section 4(g) - Withdrawals.
Refer appendix - Substance Testing - Response to Drug and Alcohol Use
The entitlement for a prisoner to seek a review of a breach of discipline includes the right of review of both the liability for discipline (ie. has the breach been proven to the requisite standard) and the penalty imposed. This includes circumstances where a prisoner may have pleaded guilty, or has been found guilty, of the beach of discipline and seeks a review only of the penalty imposed. In that case the issue of penalty is not to be considered independently of review; rather it is the breach of discipline process as a whole that is to be the subject of review.
Refer - CSA s. 119(1) and appendix - Guidelines For Hearing a Breach of Discipline
If a prisoner wants to have a decision reviewed, the prisoner must advise the deciding officer immediately after being informed of the decision. The deciding officer must not make any comment that would influence the prisoner's decision on whether to seek a review of a breach decision.
If the prisoner advised the deciding officer that he/she wants to have the decision reviewed, the deciding officer's decision is stayed until the review is finished.
The review must be held as soon as practicable after the prisoner informs the deciding officer they are wanting a review, refer CSA s. 119(2)(b).
The review decision process must be heard by a more senior officer than the deciding officer. The reviewing officer must not be the same officer as the deciding officer even though the officer may be in a more senior position. In this eventuality the review decision must be forwarded to the next most senior position.
For example -
The Accommodation Manager is the deciding officer for prisoner A. Prisoner A indicates that he/she wants the decision reviewed. When the decision comes to the Deputy General Manager the Manager, Accommodations is acting as the Deputy General Manager. In this case the acting Deputy General Manager should not review the decision and should forward the review to the General Manager.
Refer Instrument of Limitation of Corrective Services Officers' Powers (in-confidence)
In reviewing a breach determination, the reviewing officer must take all relevant factors into consideration, including -
The reviewing officer must complete the example determination questions on Form 23 - Breach of Discipline.
The following factors are relevant to a reviewing officer -
Review officers must record adequate reasons for their decision on the Form 23.
On completion of the review process, details of the review must be entered and approved in IOMS and also recorded in the Disciplinary Breach Register. The completed Form 23 must be scanned and attached to the IOMS Breach of Discipline under the “Attachments” tab, refer IOMS Online Learning Materials - Breaches.
Refer CSA s. 119
An electronic visual and audio recording must be made of major breach of discipline hearings and reviews, refer CSA ss. 117(1) and 119(6).
When a major breach hearing or review is conducted, there is to be no interruption of the electronic visual and audio recording during the breach hearing or review. If the proceedings are interrupted, an explanation is to be given on camera as to the reason for the interruption.
The general manager of a corrective services facility must establish a process that ensures electronic visual and audio recordings are stored for a 5 year period (from date of last action) in a safe, secure and easily accessible manner.
Refer appendix - Recording, Storage and Downloading Custodial Breach Video Evidence.
The following actions must occur-
Refer appendix - Operational Instruction - Storage and Disposal of Audio and Video Recordings used for Monitoring
If a breach proceeding is not to continue and the breach has already been entered into IOMS, the breach must be cancelled from the prisoner's IOMS file by a person of a higher authority. The general manager of the facility must develop a process to ensure that if breach proceeding is not to continue (eg. discharge of the prisoner) a case note explaining the reasons is entered onto IOMS. If the breach has been closed, only the general manager or deputy general manager is authorised to request a Data Correction from the IOMS help desk for the removal of the breach.
A request by a prisoner for a review of a breach of discipline decision does not constitute a breach proceeding being discontinued.
Refer administrative form - IOMS Defect Notification
The Department of Community Safety (DCS) Complaint Management Toolkit, appendix 2 - Complaint Categories, states that it is the determining officer (the person responsible for authorising the outcome of a complaint) who has discretion to decide whether or not a complaint is frivolous or vexatious. A decision that a complaint is unsubstantiated does not necessarily mean the complaint was frivolous or vexatious.
A power to breach a prisoner under CSR, regulation 6(k) must only be exercised where-
A detention unit provides for the accommodation of a prisoner who has been found to have committed a breach of discipline and has been ordered to undergo a period of separate confinement.
When a prisoner is accommodated in a detention unit all staff must be cognisant of the at-risk indicators that may present as a consequence and take immediate action as required in accordance with the Procedure- At-Risk Management (Self Harm/ Suicide)where there are grounds for the raising of aNotification of Concern.
In circumstances where a prisoner has been identified as being at-risk of self harm or suicide the door between the cell and the exercise yard of the detention unit is not to remain open unless the prisoner is under constant observation.
Where a prisoner is accommodated in aDetention Unit and has not been identified as being at-risk of self harm or suicideand does not present with at-risk indicators then any decision is respect to the prisoners access to the exercise yard will be made in accordance with the ordinary day to day operation of the Unit.
All recreational or general equipment available to prisoners in a detention unit must be approved by the Deputy Commissioner, Statewide Operations prior to prisoner issue. Refer appendix - Approved Recreational and General Equipment Available to Prisoners in a Detention Unit for current approved items.
Recreational or general equipment in a detention unit available to a prisoner must be inventoried and checked daily to ensure integrity of the item. A detention unit inventory report must be provided to the chief executive or authorised delegate of the corrective services facility on a quarterly basis.
Prisoner access to items in a detention unit such as brooms, mops, skipping ropes etc, should be on a risk assessed basis and not stored or left unattended in exercise yards where they may be used as weapons. For security reasons, all recreational or general equipment that is issued to a prisoner which is not a fixture, must be removed from access and secured on completion of the purpose for which it was issued.
Officers carrying out duties in a detention unit must ensure that -
To prevent a prisoner from harming themselves or others restraints may need to be applied that result in the prisoner having significantly restricted movement (eg. lying prone on the floor and unable to stand). In the event that this occurs, in addition to the log book requirements specified in section 3.1 of standard operating procedure Gate Books, Log Books, and Registers, staff rostered to detention units must record -
Section 16.3 does not apply to prisoners who have restraints applied in accordance with appendix Escort Staffing, Weapons and Restraint Matrix (in-confidence) for external escorts.
Refer to appendix Restraints Schedule and training manual Control and Restraint Student Manual
A file must be established for a prisoner placed in a detention unit. The file must include -
A supervisor must check the file of each prisoner placed in the detention unit once during his/her shift or as required under any observation regime. This check should assess information recorded on the file and whether further action needs to be taken for individual cases. This check must be placed in the unit log and recorded on the prisoner's file.
The contents of the file must be scanned and placed on IOMS and/or transferred to the prisoner's Offender File when the period of detention is completed.
A supervisor must ensure that any officer entering the unit is aware of his/her responsibility for entering details in case files and the unit log book as required.
Refer standard operating procedure - Gate Books, Log Books and Registers and procedure Offender File Management (in-confidence)
The general manager must document the daily routine and privileges for prisoners detained in the detention unit, refer appendices - Daily Routine Detention Unit (in-confidence) - Separate Confinement; Behaviour Requirements Separate Confinement (in-confidence); Detention Unit Prisoner Accommodation Conditions Sheet (in-confidence) - Separate Confinement
Only those persons authorised by the general manager may access a detention unit.
The general manager must determine and provide for the required level of intervention by specialist staff and their access to the unit.
The general manager must specify the minimum requirements for staff accessing a cell and escort arrangements, which take into account the reasons for detention.
The general manager must provide for a prisoner's needs in accordance with the reason for his/her confinement in a detention unit. Subject to the safety and security of a corrective services facility, consideration must be given for access to -
For further details regarding a prisoner undergoing separate confinement refer CSR s 5; appendix - Authorised Property Separate Confinement and At Risk Observations.
Refer standard operating procedure - Search - Prisoners and Corrective Services Facilities and Direction for a Search Requiring the Removal of Clothing of Prisoners
A prisoner detained in the detention unit under this standard operating procedure must be examined by a doctor in compliance with CSA s 121 (separate confinement).
Officers must immediately refer any medical needs of a detention unit prisoner to the Queensland Health Nurse Unit Manager and/or registered nurse.
The general manager or nominee, in consultation with the Nurse Unit Manager, where applicable, may determine more frequent services in accordance with a prisoner's medical needs or the operational needs of the facility. A record of that consultation must be placed in the unit log and recorded on the prisoner's file as listed in section 16.2 of this standard operating procedure.
If a prisoner requires medical treatment that cannot be provided in the detention unit, the prisoner must be removed to the Queensland Health centre located within the facility with the approval of the general manager.
The general manager of the corrective services facility must provide for the use and storage of electronic visual/audio recordings used in a detention unit and account for all recordings in a register containing the following information -
Any electronic visual and audio recording registers and log books must be archived under the conditions specified in the Libraries Act 1988 and the Retention and Disposal Schedule.
Electronic visual and audio recordings which depict the commission of an offence in a detention unit, must be treated as evidence and removed from circulation, secured and signed for by the general manager of the corrective services facility.
Refer standard operating procedure - Preservation of a Crime Scene and Evidence
The general manager of a facility must ensure that all personnel operating closed circuit television monitoring and recording devices are instructed on and acknowledge the intent of the Agency's Code of Conduct and procedure - Use of Information and Communication Technology Facilities and Devices.
The general manager of the facility must develop a process that ensures a reasonable sample (a minimum of 10%) of the facility's breaches of discipline are reviewed on a quarterly basis. The review must check that breaches of discipline are being conducted in compliance with practices outlined in this standard operating procedure. The review and any follow up actions to any findings are to be recorded in the breach register.
Acting Deputy Commissioner, Statewide Operations