In the Matter of Occupational Health, Safety and Welfare Act 1986: Maurice John Dawes v Ian Lapthorne No. SCGRG 94/420 Judgment No. 4824 Number of Pages 18 Industrial Law

[1994] SASC 4824

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Industrial law - industrial safety, health and welfare - Appeal under South Australian Occupational Health, Safety and Welfare Act 1986 - dispute as to issue of handcuffs to all prison officers - a matter of policy, not of health and safety - not established that employer in breach of s19(1) of Act - error by Review Committee - appeal allowed. Occupational Health, Safety and WelfareAct 1986, ss 19, 39, 42, 43, 48 and 49 and Correctional Services Act 1982, s 24. Dorset Yacht Club v Home Office (1970) AC 1004; Alec Finlayson v Armidale City Council (1994) 123 ALR 155; Wilmot v State of South Australia (1993) 174 LSJS 403 and Acre Development v National Companies and Securities Commission and Anor (1987) 46 SASR 238, applied.

HRNG ADELAIDE, 12 October 1994 #DATE 17:11:1994

Counsel for appellant:     Mr B M Selway with Mr E Brooks

Solicitors for appellant:    Crown Solicitors Office (SA)

Counsel for respondent:     Mr A S Martin

Solicitors for respondent: Department for Industrial Affairs

ORDER
Appeal allowed.

JUDGE1 NYLAND J This appeal is pursuant to the provisions of s49 of the OccupationalHealth, Safety and Welfare Act 1986 ("the Act"). It concerns an improvement of notice numbered I227 dated 29.4.93 issued by the respondent, and served upon the appellant requiring that certain Correctional Services officers at the Adelaide Remand Centre be issued with handcuffs. That notice was confirmed by a review committee on 3 March 1994. This appeal is from the order of that committee.

2. Before considering the issues which arise on this appeal it is useful to refer to the relevant provisions of the Act. Section 19 of the Act concerns duties of employers. The appellant was, and is, under a duty to ensure, so far as is reasonably practicable that departmental officers while at work are safe from injury and risks to health. Section 19(1) states:
    "(1) An employer shall, in respect of each employee employed
    or engaged by the employer, ensure so far as is reasonably
    practicable that the employee is, while at work, safe from
    injury and risks to health and, in particular-
    (a) shall provide and maintain so far as is reasonably
    practicable-
     (i) a safe working environment;
     (ii) safe systems of work;
     (iii) plant and substances in a safe condition; and
    (b) shall provide adequate facilities of a prescribed kind
    for the welfare of employees at any workplace that is under
    the control and management of the employer; and
    (c) shall provide such information, instruction, training and
    supervision as are reasonably necessary to ensure that each
    employee is safe from injury and risks to health.

Penalty-
    (a) in the case of a first offence-Division 2 fine;
    (b) in the case of a second or subsequent offence-Division 1
    fine."

3. Section 19(3) further explains those duties in the following terms:
    "(3) Without derogating from the operation of subsection (1),
    an employer shall so far as is reasonably practicable -
    (a) monitor the health and welfare of the employer's
    employees in their employment with the employer, insofar as
    that monitoring is relevant to the prevention of work-related
    injuries; and
    (b) keep information and records relating to work-related
    injuries suffered by employees in their employment with the
    employer and retain that information and those records for
    such period as may be prescribed; and
    (c) provide information to the employer's employees (in such
    languages as are appropriate) in relation to health, safety
    and welfare in the workplace (including the names of persons
    to whom the employees may make inquiries and complaints about
    matters affecting occupation health, safety or welfare); and
    (d) ensure that any employee who is to undertake work of a
    hazardous nature not previously performed by the employee
    receives proper information, instruction and training before
    he or she commences that work."
    (e) ensure that any employee who is inexperienced in the
    performance of any work of a hazardous nature receives such
    supervision as is reasonably necessary to ensure his or her
    health and safety; and
    (f) ensure that any employee who could be put at risk by a
    change in the workplace, in any work or work practice, in any
    activity or process, or in any plant -
     (i) is given proper information, instruction and training
     before the change occurs; and
     (ii) receives such supervision as is reasonably necessary
     to ensure his or her health and safety; and
    (g) ensure that any manager or supervisor is provided with
    such information, instruction and training as are necessary
    to ensure that each employee under his or her management or
    supervision is, while at work, so far as is reasonably
    practicable, safe from injury and risks to health; and
    (h) monitor working conditions at any workplace that is under
    the management and control of the employer; and
    (i) ensure that any accommodation, or eating, recreational or
    other facility, provided for the benefit of the employer's
    employees while they are at work, or in connection with the
    performance of their work, and under the management or
    control of the employer (either wholly or substantially), is
    maintained in a safe and healthy condition."

4. Where an inspector is of the opinion that a person is contravening a provision of the Act (in this case s19(1)), the inspector may issue an improvement notice to that person requiring that person to remedy the matters referred to therein. Section 39 of the Act deals with the subject of improvement notices and provides as follows:
    "(1) Where an inspector is of the opinion that a person-
    (a) is contravening a provision of this Act; or
    (b) has contravened a provision of this Act in circumstances
    that make it likely that the contravention will be repeated,
    the inspector may issue an improvement notice requiring the
    person to whom the notice is addressed to remedy the matters
occasioning the contravention or likely contravention.

(2) An improvement notice must-
    (a) state that the inspector is of the opinion that a person-
     (i) is contravening a provision of this Act; or
     (ii) has contravened a provision of this Act in
     circumstances that make it likely that the contravention
     will be repeated; and
    (b) state the grounds of the inspector's opinion; and
    (c) specify the provision of this Act in respect of which
    that opinion is held.

(3) An inspector may-
    (a) include in an improvement notice directions as to the
    measures to be taken to remedy the contravention, or to avoid
    further contravention, of the Act;
    (b) specify in an improvement notice a day by which the
    matters referred to in the notice must be remedied.

(4) Subject to this Act, a person who contravenes or fails to
    comply with an improvement notice if guilty of an offence.

Penalty: Division 3 fine."

5. Pursuant to s42(1)(a) of the Act an employer may apply to the President of the Industrial Court to have the notice or the actions of an inspector reviewed by a review committee.

6. Section 43 sets out the powers of committee on review:
    "(1) At the conclusion of a review under this Part, a review
     committee may-
    (a) confirm any notice to which the review relates; or
    (b) confirm a notice with such modifications as it thinks
    fit; or
    (c) cancel a notice; or
    (d) issue a notice or issue a different notice in
    substitution for the notice.

(2) Where a review committee confirms an improvement notice
    the operation of which has been suspended or confirms such a
    notice with modifications, the review committee shall order
    the person to whom the notice was addressed to comply with
    the notice within a period specified by the committee.

(3) A person who contravenes or fails to comply with a notice
    that is confirmed or issued by a review committee within the
    period specified by the committee is guilty of an offence.

Penalty: Division 2 fine."

7. The procedures of the committee are set out in s48 of the Act. Section 48(3) provides:
    "(3) A review committee-
    (a) shall act according to equity, good conscience and the
    substantial merits of the case without regard to
    technicalities and legal forms; and
    (b) is not bound by any rules of evidence, but may inform
    itself on any matter in such manner as it thinks fit."

8. Pursuant to s49 of the Act, an appeal lies to the Supreme Court against a decision of the review committee. It is in the following terms:
    "(1) A party to proceedings before a review committee may
    appeal to the Supreme Court against a decision of the
    committee in those proceedings.

(2) For the purposes of an appeal under this section, the
    Supreme Court may be constituted of a single Judge.

(3) An appeal under this section may be on a question of law
    or a question of fact.

(4) An appeal on a question of fact may only occur with leave
    of the Supreme Court (which should only be granted where
    special reasons are shown)."

9. The respondent in this case is an inspector pursuant to the Act. He attended at the Adelaide Remand Centre on 2 April 1993 as a result of a default notice issued by Paul Corkin, a health and safety representative.

10. The respondent inspected the site, and in particular the areas which were the subject of dispute, namely, the accommodation units, the visiting rooms and the infirmary. Following his inspection he issued an improvement notice alleging a breach of s19(1) of the Act. The grounds stated in the notice were: "The system of work is unsafe. It requires the supply of additional sets of metal handcuffs to bring the total issue to 31 sets". The notice was served upon the appellant, who at the relevant time was the chief executive officer of the Department of Correctional Services. The notice probably should have been served on the Crown as the employer instead of the appellant but Mr Selway, who appeared for the appellant, informed the court that it was not disputed that the appellant received the notice and had at all relevant times acted as agent for the Crown. No point was therefore taken as to this matter.

11. By application dated 7 May 1993, the appellant applied to the President of the Industrial Court for a review of the notice on the ground that there was no proper basis upon which the respondent could be reasonably of the opinion that the appellant was contravening s19 of the Act.

12. The hearing before the committee commenced on 10 June 1993. Regrettably, thereafter it was somewhat protracted. There were a number of delays and the hearing did not conclude until 3 March 1994. A substantial body of evidence was called. In addition to the appellant and respondent, the following persons gave evidence before the committee:
    - Paul Corkin, a Correctional Services officer;
    - Kerry Lampard, a prison officer;
    - Norman Banner, retired, former Assistant Director of
    Operations and Prison Services of the Victorian Office of
    Corrections;
    - Robert Kearney, Manager of Prison Services, Adelaide Remand
    Centre;
    - Jim Konstad, acting General Manager, Adelaide Remand
    Centre;
    - John Dunthorne, General Manager, Port Augusta Prison;
    - Kevin Corcoran, General Manager, Yatala;
    - Anthony Kelly, Director, Offender Services;
    - John Hardwick, sergeant of police, instructor at Police
    Academy at Fort Largs in training police officers in the use
    of firearms, batons, handcuffs and occupational health and
    safety techniques.

13. The evidence of the respondent concerning the basis upon which he issued the improvement notice appears at AB 76:
    "... on the balance of probabilities I decided and I felt
    quite honestly that there was a risk of assault on an officer
    and that the officer, if supplied with a set of handcuffs,
    had more opportunity to rectify a person who's swinging a
    punch at them, to be able to put that person out of action
    quickly rather than have to wait for someone to assist them.
    I thought that was reasonable. I thought it was reasonably
    practicable that the employer issue an additional 13 sets of
    cuffs, metal cuffs, to 13 identified additional positions as
    identified by the safety committee in their request to me,
    and I felt that under the current situation that existed on
    2 April where 18 sets of cuffs had been issued and that
    another 13 positions I believe honestly were at risk. By
    looking at the Act, particularly s19 - it says under (19(1)
    that 'The employer shall, in respect of ... and risks to
    health'.

Based on that paragraph I issued the original improvement
    notice, and subsequently the notice 6227 I believe, which
    required Correctional Services to provide a safe work
    environment and safe systems of work according to that Act."

14. The additional 13 sets to which he referred consisted of an additional six sets in the visit area, six in the accommodation units, and one set in the infirmary. It is clear on the evidence that the respondent issued the improvement notice because he perceived that there was a risk of assault to the prison officers and that officers not issued with metal handcuffs were at greater risk of assault and injury. He appeared to understand that if each officer had a set of handcuffs, that officer would be at lesser risk of assault and be better able to restrain a prisoner before an assault occurred, or during an assault without assistance.

15. During the course of the hearing, however, he conceded that handcuffs would not prevent assaults, nor deter an assault. He also conceded that one officer was not able safely to apply handcuffs to a prisoner.

16. Prior to the issue of the improvement notice, the instruction which related to instruments of restraint was that which appears at AB 570. On 22 July 1993 as an interim measure, a fresh instruction was issued pending resolution of appeal procedures and handcuffs were provided until the matter was determined. This is relevant to the final submission of the respondent.

17. The respondent in the course of his closing address submitted as follows:
"As I am required, by the Act, under s37, to attempt to
    resolve issues I duly attempted to do so. At the end of the
day I see that the overriding aspect is s19 of the
Occupational Health and Safety Act requires an employer, as
    far as it reasonably practicable, to ensure that each
    employee is safe from injury, risk to health.

Yesterday we heard very convincing evidence from Sergeant
    Hardwick that he believes it is unsafe for one officer to
    apply handcuffs. I certainly take notice of his advice. I
    suggest the issue of handcuffs to two officers in units, in
    the unit accommodation, the infirmary, and in the visit
    areas, would ensure that there are safe work practices, on
    the proviso that these officers are given adequate and
    effective training in the use of their equipment.

Furthermore, the handcuffs have been in use now in an
    identified 31 positions for a period of ten months. I have
    heard of no problems, or no concerns, brought to me by
    officers, safety reps, or management, in the use of these
    items of equipment. I, therefore, believe that they should
    remain."

18. It would appear from these remarks that the respondent, having heard the evidence, changed the basis upon which he believed the improvement notice should be supported. At the end of the case the issue appears to have moved from a consideration of whether the appellant was in breach of s19 of the Act to a general consideration of the advantage to officers of having handcuffs on their persons.

19. According to the evidence, prior to the issue of the improvement notice, the Department of Correctional Services had in place at the Adelaide Remand Centre a variety of systems for the protection of officers and others when dangerous situations developed, or when an officer feared that one might develop. The accommodation units which were a principal area of concern in this dispute consisted of a number of separate units split into two different levels. A maximum of 28 prisoners were contained in each unit in a reasonably open system. There were two prison officers in each unit, who intermingled with the prisoners on a regular basis. Prisoners were not locked in their cells all of the time. Most of the time prisoners had general access to the whole area of the unit. The officers were usually within sight or hearing of each other, and each would let the other know where he was, although that was not invariable. For example, if one officer absented himself to go to the toilet, he would not be available to support the other. I understand a similar situation existed in the infirmary and visit area.

20. Each officer had a personal alarm attached to his person which was activated by pushing a button. The personal alarms were tested twice a day at changes of shift. At the time of the issue of the notice there was no mention of any failure of duress alarms. There was some suggestion in the evidence of the potential failure of those alarms, but the respondent described them as being "fairly reliable".

21. The area was also covered by video cameras which had the capacity to view any untoward incident. Certain blind spots, however, were not reached by the cameras. In addition they were slow and there was a chance that a period of time would pass before any incident would be picked up on the camera. The appellant, however, described the camera system as being "as up to date and modern as it would be possible to get". Presumably if a camera recorded an incident, the person monitoring the camera would be able immediately to sound the alarm. Mr Lampard said, however, that the cameras were not an issue in terms of the handcuffs. In my view, the evidence as to the use of cameras as a safety device ultimately was somewhat equivocal. They appeared primarily to be used for recording purposes although they probably have some part to play in the overall system of safety.

22. According to the evidence, one of the two officers in the accommodation units had a radio which could be used to call for assistance. Once assistance had been called, the response time was between 30 and 60 seconds. During a test the response time was about 20 to 25 seconds but there was other evidence to the effect that on occasions it could be as much as three minutes.

23. Mr Corkin said, however, that there had never been a failure by officers to respond to an alarm, and he believed the response was within a reasonable time. The response consisted of a number of officers with relevant equipment to control the situation, which include handcuffs, batons and gas. The details of the response procedures are set out in some detail in a statement submitted by Mr Kearney (D12) in the following terms (AB 643-646):
    "During C shift and B shift when there are less staff there
    is an emergency response group that are on call 24 hours a
    day on pager. The Group has spent the last 6 or so years
    responding to situations. I have responded to one hostage
    situation at the Adelaide Remand Centre and numerous other
    situations. If there is an incident at the Adelaide Remand
    Centre the officers keep the prisoner locked up and when
    Response Group officers arrive, they take over.

On A shift: in the gymnasium area there are 2 supervisors who
    can respond to calls for assistance. There are also 6 to 8
    unit officers in the gym area but they stay and look after
    their unit groups.

There is also 1 supervisor in each level office who carries a
    pair of metal handcuffs. Each of the 2 unit 7 officers carry
    handcuffs.

The gymnasium supervisors are the first response. Unit 7
    officers are the second response. Everybody else responds at
    the same time. Anybody not involved who can close down

    prisoners will respond immediately. Generally you will get
    anywhere between 5 to 25 correctional officers responding.
    It is my experience that there is always a very good response
    to Code Yellows.

Since about early February 1993 when the issue of metal
    handcuffs came to the fore and officers complained that the
    recreation supervisors responded without handcuffs, I have
    directed that each of those officers carry a pair of metal
    handcuffs.

On B shift: the 2 gymnasium supervisors are not on duty but
    are available on pager to respond to any request to attend at
    the Centre. The 2 unit 7 officers now become first response
    and they each have a pair of metal handcuffs. Their duty is
    to respond first as would the supervisor and any other
    officers not involved at that time or any other officer that
    could close down a unit, eg unit 6 officers.

On C shift: all prisoners are secured. All prisoners are
    locked in their cells. The only people who would respond on
    C shift are the patrolling officers. The most likely thing
    you will get on C shift will be somebody for example,
    smashing up their cell. If that was the case, then it wold
    be up to the Officer in Charge ("OIC") of the institution and
    he would contact the duty manager. He could decide to call
    in a few officers from the Emergency Response Group and have
    them move the prisoner up to unit 7.

Availability of assistance: There are always two officers in
    a unit and the units are covered by camera. The moment an
    office began to be assaulted, the officer should press the
    emergency button or the partner would. What happens is that
    officers generally press that button before there is any
    chance of being assaulted, particularly if they are alert.
    Originally that Code Yellow used to stand for 'officer in
    danger'. The operating instructions were changed to 'officer
    requires assistance' but everybody still treats it as an
    'officer in danger' so that now, as soon as there are two
    prisoners fighting in a unit they press the button because
    they require assistance. Other correctional officers
    respond. In that situation, the officer is not necessarily
    in danger, he or she just requires assistance.

Assistance - time period: In my experience it is not longer
    than 30 - 60 seconds. Sometimes it is immediate. I have
    been standing next to the door of a unit, even recently, when
    I have heard the 'Alert-Alert Code Yellow' and I have just
    pressed the intercom and said 'Let me into the unit'. I went
    straight in and as I got in there I saw two prisoners lying
    on the floor and the officers have told them to stop and then
    the officers have said 'I've cancelled the Code - we've got
    this under control'. Most Code Yellows are not officers
    getting assaulted or even officers in danger. What they are
    is prisoners fighting with each other and the officers are
    calling for assistance.

There is an alarm that is an aural alarm which goes right
    throughout the institution and over every radio and that is
    followed by the following words - 'Alert-Alert Code Yellow
    Unit (for example) Three' - and immediately those people who
    are required for duty or able to secure their prisoners
    behind a barrier do that and respond. Also, the gym staff
    drop everything they are doing and go straight away. They do
    not have to secure anybody because there are other unit
    officers with the prisoners in the recreation area. The Unit
    7 officers respond. The supervisor leaves his office and
    responds and as a manager, I generally respond. So does
    anybody else who can. If it was big enough then the Unit
    officers in Unit 6 would look after the prisoners in 6 and 8,
    would close down those Units and respond as well, albeit some
    time later. We have possibly the best response time in the
    State at the Adelaide Remand Centre."

24. Previously officers mingling with the prisoners did not have handcuffs. For example, on A shift prior to the issue of the improvement notice there were ten pairs of handcuffs available. They were distributed as follows:
    3 : Level Supervisors (OPS-3S)
    2 : Unit 7 Officers
    2 : Recreation Supervisors
    2 : Admissions Officers
    1 : Infirmary Officer     TOTAL : 10 pairs

25. Following the improvement notice handcuffs were increased to 31 pairs, distributed as follows:
    3 : Level Supervisors (OPS-3S)
    2 : Unit 7 Officers
    2 : Recreation Supervisors
    2 : Admissions Officers
    2 : Infirmary Officers
    2 : Unit 1 Officers
    2 : Unit 2 Officers
    2 : Unit 3 Officers
    2 : Unit 4 Officers
    2 : Unit 5 Officers
    2 : Unit 6 Officers
    2 : Unit 8 Officers
    6 : Visits Officers     TOTAL : 31 pairs

26. The evidence established that the presence or otherwise of handcuffs would not have any immediate effect on whether or not an assault occurred. The evidence of the respondent (transcript page 89) was as follows:
    "A. I think an assault is going to happen whether you've
    handcuffs on your hip or not, I think that's borne out by
    looking at the figures of the assaults that have happened in
    the Remand Centre over the last 20 months. That's not the
    issue that I have in mind.
    Q. You say that a correctional officer could be assaulted
    irrespective of whether or not they have handcuffs.
    A. Absolutely, I think that's a fact of life.
    Q. So the provision of a handcuff then doesn't of itself
    prevent an assault occurring, does it.
    A. It doesn't, it may have some deterrent effect but I am not
    able to gauge what effect that might have."

27. (Transcript page 109):
    "Q. The provision of handcuffs to an officer, you'd agree
    wouldn't you that that of itself doesn't reduce the potential
    for an incident arising within an accommodation unit or
    remand centre would you.
    A. Yes, I'd agree with that."

28. Mr Lampard also agreed that the wearing of a pair of handcuffs would not prevent an incident occurring, although he said that it would prevent it escalating. The chairman of the committee, in discussion in the course of the respondent's address, said (AB 477):
    "I don't think we can pretend the issue of these handcuffs
    will eliminate assaults or physical encounters in these
    particular institutions."

29. A number of reasons were advanced on behalf of the appellant for not issuing each prison officer with a set of handcuffs to carry on his person. The principle reason related to the nature of the role and function of the prison officers. The evidence on this topic was primarily that of the appellant who described the regime in place at the Adelaide Remand Centre. He said that the officers were intermingling with the prisoners and it presented the wrong image for them to have handcuffs. His evidence on that topic was extensive, but I refer to an excerpt which appears at transcript 266:
    "A. Correctional officers have been encouraged to be more
    open, and to rely more on good interpersonal skills in their
    work. Some officers have done a tremendous job; other
    officers have found it more difficult. Underpinning that
    there was a strong commitment by governments to move from
    autocracies, often not very benevolent, to prison management
    regimes where there was more discussion, more consensus, a
    better understanding of the needs of people, and of course,
    issues like deaths in custody have reinforced the need to
    make that move. The impact on prison officers has been
    essentially that they not only have to be better
    communicators, they become more accountable for what they do.
    Q. Has that had any consequence in the types of so-called
    tools of trade used by prison officers.
    A. That relates to something I said before the break. Some
    States have been fare more subtle about the display of such
    equipment, and in the context of television, we haven's been
    very subtle in South Australia, but that applies equally to
    the other sorts of things. No State would have a system
    where appropriate instruments of restraint weren't available;
    they are provided for. They are provided for under an
    international covenant to which this country is a signatory.
    The issue is how they use them. Whether the use is
    appropriate, whether they are available in emergencies, not
    whether they are worn and not displayed, publicly visible."

30. Mr Kelly expressed a similar view (transcript page 403):
    "... the department believe that the management of people is
    the primary objective in being a prison officer, as well as
    security, and that the means by which you do that is
    communication, that's the principal means of managing
    people."

31. Mr Dunthorne expressed a similar opinion in his statement (AB 695-696):
    "I have a further concern in relation to officers carrying
    handcuffs. It has been my experience that the most effective
    means of dealing with prisoners and ensuring the safety of
    officers and prisoners and the security of the institution is
    to increase the personal dynamics between officers and
    prisoners. I do not think that officers wearing handcuffs
    will support or encourage creating workable relationships
    between officers and prisoners. Today's Correctional Officer
    is encouraged to be more proactive in the area of dynamic
    security and issuing handcuffs to all officers is, in my
    view, somewhat of a paradox to achieving that end."

32. The evidence also established that handcuffs could not be used by officers without further support and support in those circumstances would be equipped with handcuffs. The appellant contended, therefore, that it was unnecessary for the officers to have personal-issue handcuffs. There was a suggestion that the presence of handcuffs might induce officers to physically intervene in matters where the best response was to wait for support but at best, the evidence as to this matter is inconclusive.

33. Other reasons adduced by the appellant for not issuing all officers with handcuffs included the fact that a greater number of handcuffs created the practical problem of the number of handcuff keys to be kept within the prison as it increased the risk of prisoners obtaining access to the keys.

34. There was also a concern that there was a risk that prisoners would obtain the handcuffs and use them to secure or injure a prison officer. Mr Corcoran in his evidence referred to a risk that the handcuffs could be misused by prison officers. This latter concern was not pursued in cross examination, however, and is of little weight in the overall consideration of the various issues which arise on this appeal.

35. In reaching its determination there were two matters which seemed to be of some importance to the committee. First there was the evidence that each of the officers carried a knife. This knife was used to cut down prisoners attempting suicide. The provision of the knife was a result of a recommendation of the Royal Commission into Aboriginal Deaths in Custody. The requirement was that at least one prison officer in a unit have a knife available for cutting ropes or something similar. An attempt was made to find the least dangerous form of knife adequate to the task. The appellant said that he had grave concerns about the knife and he thought that it was unsafe. It was, however, a recommendation of the Royal Commission which could not be ignored. In any event, in terms of presentation and image, a knife was not viewed as an item of control. As Mr Selway said, however, the presence of one doubtful or unsafe practice is an insufficient basis to justify another unsafe practice.

36. A second and perhaps more significant matter to which the committee appears to have paid particular attention was the evidence of Sergeant Hardwick who said that each police officer carried handcuffs. Mr Selway submitted, however, that the relationship of the police to suspects is different from the relationship of prison officers to prisoners. Prison officers in the context of the accommodation units, unlike police officers, have a continuing day-to-day relationship with the prisoners. That, in my view, is self-evident. Sergeant Hardwick's evidence also established that police officers have other control equipment to subdue prisoners, such as guns and batons. His evidence also supported the contention that handcuffs were an item of restraint which should not be used until a person was subdued.

37. At the conclusion of the evidence the committee delivered ex tempore reasons for its decision. It made an order confirming the improvement notice and said:
    "In making this decision, we do not intend to canvas the
    entirety of the great bulk of evidence that has been put
    before us, or the submissions and points made. The following
    can only be taken as brief comments the committee has been
    able to agree upon in the time that has been available.

It appears to us that the case, as it has been put, is not
    that the issue of handcuffs would safeguard officers from
    unanticipated assaults; but rather, that there are certain
    unavoidable occasions when an officer, by the very terms of
    his or her duty, is required to intervene in physical
    altercations and situations, and on those occasions, from
    time to time, the presence of handcuffs will better enable
    those officers to gain and to maintain control of that
    situation, with lesser risk of injury.

The committee, having looked at the evidence, considers that
    this case has been made out. Neither this decision nor the
    notice which it confirms should or could be taken as an
    encouragement to any officer to intervene in any situation
    where that officer would presently summon and await support
    before taking any action, and indeed, it would be
    inappropriate for that officer to vary his judgment simply by
    virtue of the fact that handcuffs had been issued.

The objections of the department, as they have been urged
    upon us, are multi-faceted. We believe that some, at least,
    of those objections would disappear altogether if the
    handcuffs on issue were to be worn concealed from direct
    sight in a pouch on the equipment belt which is already worn
    by the officers in question.

The inspector, the officers, and the departmental witnesses
    have all, in their various ways, highlighted the crucial
    importance of regular training for all officers in the use of
    equipment, including these handcuffs. Such training should
    be provided as expeditiously as possible, and should
    incorporate both the ethical and practical aspects of the use
    of handcuffs, as with any other equipment."

38. On the hearing of this appeal the appellant had two principal complaints concerning the decision of the committee. The first related to its application of the provisions of s19(1) of the Act. The appellant submitted that the review committee had failed properly to interpret and apply the words "reasonably practicable" in s19(1) of the Act. The committee appears to have been aware that this was an issue as it was the subject of some discussion, particularly in the course of addresses, but Mr Selway argued that it had failed to perceive its significance.

39. It is therefore necessary to consider the use of that phrase in s19(1). There is a recognition in s19(3)(d) and (e) of the Act that some forms of work are hazardous. It is clear that the Act does not impose a duty upon an employer in such a situation to ensure that the system of work is absolutely safe. That would be an impossibility. The requirement is that it be safe "so far as is reasonably practicable". To use the example given by Mr Selway, the system of work of prison officers would undoubtedly be much safer if prisoners were manacled all the time, or if they were kept isolated and locked in their individual cells. It is obvious, however, that the Act does not, and cannot, contemplate such a situation.

40. Accordingly, it follows that the judgment of what is reasonably practicable must involve some acknowledgment of the nature of the hazardous task. The question, therefore, arises as to who it should be that defines the nature of the task. Mr Selway submitted that the issue which has arisen in this case was a matter of a policy as it related to the regime which existed in the prison and it was therefore not an occupational health and safety issue. He argued that it was necessary to take the regime as it was and then apply occupational health measures to that regime. For example, it was not open to an inspector or a review committee to find that the operation of an open prison system such as Cadell constituted an unsafe system of work. Instead, such inspector or committee, if considering a system such as that at Cadell, would be obliged to accept the regime that existed and then determine whether, in the light of that regime, the system of work was safe "so far as is reasonably practicable".

41. In considering who has the responsibility to determine the regime in prisons it is necessary to refer to the Correctional Services Act 1982:

42. Section 24(1) of that Act provides that the chief executive officer of the department has legal custody of all prisoners. Section 24(2) provides as follows:
    "(2) Subject to this Act, the Chief Executive Officer has an
    absolute discretion -
    (a) to place any particular prisoner or prisoner of a
    particular class in such part of the correctional
    institution; and
    (b) to establish in respect of any particular prisoner, or
    prisoner of a particular class, or in respect of prisoners
    placed in any particular part of the correctional
    institution, such a regime for work, recreation, contact with
    other prisoners or any other aspect of the day-to-day life of
    prisoners,
    as from time to time seems expedient to the Chief Executive
    Officer."

43. The Adelaide Remand Centre is a prison and persons detained therein, although on remand, are prisoners within the meaning of the Act. Section 24 therefore applies to them as well as all other prisons and prisoners.

44. In my view, the Correctional Services Act 1982 clearly establishes that the role and regime of prisons, and the regime to which particular prisoners are to be subject, is to be a matter for the determination of the Chief Executive Officer. Accordingly, the decision that Cadell should be a low security prison with limited restraints on prisoners is a matter for his determination as is the determination that the Yatala Labour Prison be a prison of high security. Similarly, the appellant argued the decision as to whether the prison officers at Adelaide Remand Centre should all carry handcuffs was a matter for the Chief Executive Officer.

45. Mr Selway referred to a number of authorities in which courts had drawn a distinction between policy decisions and operational decisions, see for example: Dorset Yacht Club v Home Office (1970) AC 1004; Alec Finlayson v Armidale City Council (1994) 123 ALR 155 at 181-182; Wilmot v State of South Australia (1993) 174 LSJS 403 per Duggan J at 418-419. There is also a discussion as to these matters in Aronson and Whitmore Public Torts and Contracts at pages 50-51 and 95-96. All of these cases arise in the context of actions in tort but in my view, the reasoning contained therein is equally applicable to the case at bar. It is unnecessary, however, to canvass those authorities in detail as Mr Martin, who appeared for the respondent, did not take issue with the principles enunciated therein. His argument was that in this case there was nothing to indicate that the subject of handcuffs being worn by all officers was the subject of policy. He submitted that it was a matter to be left to the operational discretion of the general manager of the centre. He argued that the issue for determination was not so much as whether handcuffs should be worn by the officers but rather whether they should be worn more frequently than they were at present, as it was clearly established that there were handcuffs available all over the remand centre.

46. This issue is not easy to resolve, partly I believe on account of the article with which this case is concerned. The issue would undoubtedly be more clear cut if the article under discussion was, for example, a hand gun or some other obvious instrument of control. Handcuffs, nevertheless were established in the evidence to be instruments of control. The evidence of the appellant, together with that of Kelly and Dunthorpe, established that the regime in place at the Adelaide Remand Centre was that of "responsibility" rather than "control". I am therefore persuaded that the regime or policy in force necessarily precluded prison officers from having implements of control on their persons, be it guns, batons or handcuffs. This, therefore, was not an occupational health and safety matter to which the provisions of the Act applied. If the evidence had established long delays in providing handcuffs to prison officers for the purpose of restraint, that might well be an occupational health and safety issue, but that does not arise in this case. In my view, if there was a safety issue arising as a result of the prison officers not having personal handcuffs, it needed to be addressed by matters other than handcuffs.

47. In my view, the review committee misunderstood the section and applied an incorrect test. I find, therefore, that it has committed an error in law.

48. The second complaint made by the appellant was that the committee had, in any event, fundamentally misunderstood its role. The decision that was the subject of the review was the decision of the inspector, pursuant to s39(1)(a) of the Act, that the appellant was in breach of s19(1) of the Act. Accordingly, the committee was obliged to consider whether the appellant had failed to ensure that the workers were safe at work. It was not sufficient for the committee to reach an opinion that the handcuffs would make some difference or a marginal difference.

49. Mr Selway submitted that there was no evidence that the provision of handcuffs to all prison officers would improve the safety of those officers. All the evidence was to the contrary. For example, Mr Corkin said at page 426:
    "I think, and I am only speaking for the majority of officers
    at the remand centre, I think most of them have enough
    commonsense to realise that the cuffs themselves, as such,
    don't provide protection for them personally. It is simply
    to restrain a prisoner, if need be and, like I stated before,
    we don't always need to restrain them. It is only ever a
    last resort, and it certainly doesn't give the officers the
    bravado to go ahead and pull out our cuffs and say, 'Look at
    me, I've got cuffs, I will slap these on you'."

50. The reasons of the committee are extremely brief. The committee expressed the opinion that the presence of handcuffs would not "safeguard officers from unanticipated assaults" but would on certain occasions "better enable those officers to gain and maintain control of that situation, with a lesser risk of injury". In my view, there was very little evidence to support this finding. Mr Martin argued, however, that it was possible to draw an inference from the evidence to that effect. He said that the evidence established that handcuffs were used to restrain prisoners. One of the reasons for restraining prisoners was to prevent them from hurting anybody including prison officers. Accordingly the provision of handcuffs to each officer lessened the risk of injury by making restraint quicker and easier in certain circumstances.

51. The paucity of the committee's reasons makes it difficult to ascertain the basis on which they reached their conclusions. If, however, they drew an inference from the evidence as suggested by Mr Martin, it seems to me, nonetheless, that the committee failed to apply the correct test to the issue before it. The issue was not whether handcuffs would better enable prison officers to secure prisoners but whether the employer had ensured, so far as was reasonably practicable, the provision of a safe system of work. In my view, it was not established on the evidence that the failure to provide all prison officers with handcuffs made the system unsafe.

52. I consider therefore that the committee fundamentally failed to understand that its task was to form an opinion whether the appellant had breached the provisions of s19(1) of the Act. On the evidence before the committee, it was not possible for them to have reached the conclusion it expressed.

53. In my view, the failure of the committee to understand and correctly interpret s19(1) of the Act amounts to an error in law. Mr Martin argued, however, that the finding by the committee that the presence of handcuffs would better enable officers to gain and maintain control of the situation was a finding of fact and, accordingly, something that could not be the subject of appeal except with leave and he argued there was no basis on which to grant leave. This matter was raised at the commencement of the appeal and it was agreed that I should defer my decision on the issue of leave until the conclusion of the argument. In view of my finding that the committee has made an error in law, leave is not required. If I am wrong as to that matter, however, and leave is required, I indicate that in my view, the nature of the issues which arise herein and the importance of the question of the application of the Act to prisons, and for that matter, emergency services and other areas of work involving inherent risk, and the fundamental errors made by the review committee in consideration of the matter, make this case "extraordinary, unusual or atypical" (Acre Development v National Companies and Securities Commission and Anor (1987) 46 SASR 238 per O'Loughlin J at 243-245). I therefore consider that special reasons exist for granting leave.

54. The appeal will be allowed.

55. The order of the committee is set aside and the improvement notice is cancelled.