Alternative Law Journal
In an era of constantly changing perceptions of public accountability and the role of government, few areas of public policy have escaped controversy. The Victorian prison system has not been immune from this debate. Since its part-privatisation in the 1990s, the Victorian prison system has undergone huge reforms and attracted criticism on various fronts at different stages. This article explores the history of the prison system and in particular the restructuring that has occurred in the past few years in the wake of the accompanying shift in public sector reforms. Specifically the impact of the first few years of Victoria's prison privatisation policy on accountability in Victoria's prison system is examined, concluding that in the current system, the independence of various aspects of the regulatory framework needs to be strengthened. Wider ramifications are cited for public accountability, highlighting the need for a dramatic rethinking of this crucial area.
In the modern era, prisons have been generally regarded as an area of exclusive public domain -a view that has driven much of the criticism against privatisation. However. this has not always been the case.
Before the 20th century, both publicly and privately owned and operated prisons were common in many countries, and were often extremely bleak institutions where both private entrepreneurs and the government exploited prisoners.
Between 1788 and 1857, approximately 187,000 convicts were sent to Australia from Britain. Many of these convicts worked for private farms and in private trading enterprises in a scheme that was widely praised. In addition, many worked in government administration and on public works. But by the 1820s, a movement to impose harsher sentences had gathered strength and the prevailing belief was that convicts' conditions should be more prison-like. This was in place of the ticket-ofleave programs where convicts were housed in barracks and were free to come and go each day and undertake what today would be classified as community work for (mainly) private masters.
By the 20th century. as in England, Australian prisons had become an area of exclusive government ownership and control, with no question of private enterprise intervention. As in all Australian states, the self-contained, self-monitoring prisons unit within the Victorian Department of Justice maintained a monopoly on correctional services.
However. by the late 1980s this and many other aspects of the traditional model of public administration (TMPA) had been meeting growing criticism from the public and others seeking less bureaucracy, that the public sector do 'more with less', and better methods to control performance.
The TMPA prevailed until the late 1980s. According to Hughes (2003) the main tenets of the TMPA are that politics and the administration are separate- with direct lines of accountability through government departments to ministers at the top; as well each government department being responsible for its budget as a whole. Other features of TMPA include that the administration is anonymous and neutral with the purported characteristics of these 'permanent, neutral and anonymous officials' including that they are motivated only by the public interest; serve any governing party equally; do not contribute to policy; and administer policies decided by politicians. Another main pillar of TMPA is the theory of bureaucracy as in Weber's model. These arrangements (allegedly) kept the government accountable under the traditional model. Although this is widely quoted and repeated, the ability to keep administration separate from politics has long been questioned -indeed, Hughes as well as other observers regard this separation as something of a myth.
Over the past two decades or so, new public management (NPM) has replaced the TMPA. NPM is about the use of private sector practices in the public sector. NPM has been labelled many things including managerialism, market-based government, entrepreneurial government, post-bureaucratic government or economic rationalism. Further Hughes outlines the common elements that these models have: they are a move away from a bureaucratic organisation to more flexible arrangements, away from administrating to achieving results, and towards facing market tests and the introduction of competition. Hughes identifies four main thrusts of NPM: the focus of the organisation being on outputs rather than inputs; the reduction of inputs; the reduction in the scope of government; and a focus on responsiveness to 'clients'.
Many contemporary governments have introduced reform programs into their public sectors, with NPM being a main feature. The State of Victoria was not immune from these developments. After the Victorian election of October 1992, the newly elected coalition government oversaw NPM's full implementation, triggering major shifts in accountability to the public. The development and implementation of this reform program transformed the Victorian public service in general, and the prison system in particular, from a TMPA to one adhering to NPM principles. For example, government was told to focus on functions such as developing policy, allocating resources, specifying services and monitoring performance. As part of the implementation of NPM, the Victorian Government implemented the Management Improvement Initiative, later replaced by the Management Reform Program. This program was a means for government departments to report their financial and managerial performance, changing the departmental role from one of 'authority to spend' to 'authority to purchase outputs'. Overall, it comprised a number of integrated components and dealt with many aspects of human resource management, financial management and organisational performance management.
The major consequence of the NPM reforms for accountability has been that the traditional parliamentary model of accountability is no longer strictly appropriate. However, while the proponents of NPM sing its praises, the realities of NPM make it difficult to determine the respective responsibility of the minister and the public servants for policy and administration. NPM has further exposed the accountability gap between doctrine, conventions and reality, with practice moving ahead of the doctrinal adjustments required of the traditional parliamentary model of accountability. creating vagueness, gaps and disagreements for accountability arrangements.
By the late 1980s it had become clear that much of the Victorian prison infrastructure was run down and urgently in need of replacement. The government faced staffing problems, which sometimes led to prisoners receiving sentencing concessions because they had been locked in their cells, cost blowouts, unspecified service requirements, no minimum standards, and antiquated and inadequate facilities. Harding, a renowned pragmatic Australian academic and practitioner in the prison industry. commented that it would be 'perverse to defend the old public system of imprisonment as if it was somehow or other delivering a worthwhile service'. Clearly the system required urgent attention.
After the 1992 state election the new coalition government argued that it faced a major deficit in the current account. This crisis affected the choices it was able to make when planning how to provide and maintain prison infrastructure and services. When a government is in such a predicament, it has, Chan identifies, three choices in relation to prisons:
• build more prisons, even though the budget is inadequate
• do nothing and deal with the fallout from deteriorating prisons
• seek alternative service delivery and ways to finance and run the prison system.
Following the lead of other jurisdictions including the UK, USA and Queensland, the new reformist Victorian Government adopted the third option. This coincided with the introduction of the NPM reform program. In keeping with its pre-election corrections policy of making 'maximum use ...of contracting services from the private sector',the government introduced a number of structural, organisational and legislative changes, including major restructuring of the prison system.
It eventually selected a comprehensive privatisation model, which meant that the private sector would finance, design, construct, manage and eventually transfer three private prisons in Victoria. These private prisons would replace a number of deteriorating public prisons, some built over a century earlier and inappropriately designed and managed to deal with modern penal policy.
Introducing private ownership into an area of traditional public domain is never an easy choice for any government, particularly when dealing with an area as sensitive as prisons. In these situations there are often passionate arguments on both sides relating to the role of government and economic and social policy.
What is the role of government? Understandably. there seems to be no objective measure or principle. This leaves opportunities for ideologues to hijack the arguments on the one side and conservatives to claim the moral high ground on the other. Nonetheless, a number of writers have endeavoured to develop models for the appropriate role of governments post-2000, generally discussing frameworks such as the purchaser-provider separation, or the funding-purchasing-service provision separation or the introduction of competition.
Accountability is tricky to deal with, especially in the privatisation arena, and exact definitions of accountability are abstruse. Advocates argue that privatised prisons will bring improved prison conditions and reduced costs, whereas opponents have a number of concerns including widespread fears about the loss of accountability. Some argue accountability is increased, for example, because services are specified. Others argue that accountability under NPM decreases, for example, because information becomes less accessible to public scrutiny. Indeed, the reduction of accountability is one of NPM's strongest criticisms or challenges. All this is part of a larger debate on the direction of public accountability within the modern role of government.
Given these changes in favour of NPM and privatisation, we have arrived at a point where previous TMPA accountability models have become outmoded and there is no single cohesive replacement. It would be foolhardy to think that the formerly dominant parliamentary accountability model will re-emerge. In addition, there is criticism of the visible gaps in some areas of contemporary public accountability. The mixture we are using today, that of an adapted traditional parliamentary accountability model in the NPM environment, may also be unsustainable. We are using a hybrid model of accountability in our public sectors, which for the last 15 years or so, academics have scrambled to try to make fit the NPM environment, and by extension, the privatised prison system.
Maintaining the distinction between traditional and other types of accountability is difficult. Accountability under the TMPA consisted of political accountability and bureaucratic accountability that relied on the formal links provided through the hierarchical structure. However, with the introduction of NPM, accountability has become much more complex. Accountability under NPM relies on holding public servants responsible for their actions and for results, as well as being more responsive to the public. A selection of accountability mechanisms that assist in today's NPM environment include managerial accountability instruments such as performance management systems, market accountability including introduction of competition and quasi-judicial accountability remedies such as are found in administrative law.
A brief perusal of the literature finds several theoreticians have commenced identifying and constructing the building blocks for an alternative accountability prototype for application in the NPM environment. For instance, Stone's model examines institutional arrangements from the perspective of administrative accountability and highlights five institutional mechanisms from a public administration perspective: parliamentary; managerial; quasi-judicial; market; and constituency accountabilities.
Neave separates accountability into mechanisms and remedies for use under different conditions. She categorises a number of mechanisms of government accountability and administrative law remedies available in the delivery of government services under conditions where either the public sector or a contractor delivers the service. She identifies accountability mechanisms available including the Auditor-General and ministerial responsibility, as well as devices such as annual reports and parliamentary committees. Neave also identifies administrative law remedies available in situations where the government delivers the service such as the ombudsman, freedom of information, and privacy legislation. The report contends that there are accountability gaps in administrative law remedies where a 'contractor delivers a government service', arguing that when administrative decision-making became unwieldy, administrative law was introduced, which also contributed to the reduction of the minister's role in accountability. Neave lastly identifies other remedies that seek to ensure accountability for those cases where a contractor delivers a government service. These include contract, tort, consumer law, industry complaint mechanisms, government complaints scheme, and changing service providers.
Finally, at a more practical level, Barberis developed an accountability model that defines the scope of ministerial and public servant accountability by asking who is accountable, for what, to whom (or what), through what mechanisms and with what kind of accountability outcome? Mulgan has further advanced this model.
Thus, the accountability model, and by extension the regulatory framework, applied to the Victorian prison system was almost inevitably going to end up being a combination of contemporary models.
Like many contemporary governments, the Victorian Government's prison privatisation policy was underpinned by the nee-liberal principles that gave primacy to the 'free market' as the most effective way of allocating (scarce) resources. The government selected a comprehensive privatisation model, which meant that the private sector would finance, design, construct, manage and transfer three private prisons in Victoria. The result was that by 1998, about 65% of female prisoners and 40% of male prisoners (or more than 45% of all prisoners) were housed in privatised prisons in Victoria.
This part-privatisation of the prison service aimed to bring free market competition to the sector. Part of the rationalisation for this was the belief that private sector involvement would enhance the system's performance accountability. The government also claimed that cost savings would be made, and aimed to improve service delivery standards and improve the previous negative and inefficient prison culture.
The changes to the structure of the Victorian prison industry eventually included the implementation of a (modified) purchaser-provider model, involving the department as the purchaser of prison services, and the private and the public operators as service providers. Daly, a senior Department of Justice public servant, outlined the structural changes made for the introduction of competition (privatisation).
The separation of service delivery from regulation, policy and standard setting roles took place in 1997, facilitating the entry of the private sector into the Victorian prison system.
During the 1997-2003 period, the part-privatised prison system comprised four main players made up of:
• the commissioner or regulator
• the private service providers
• a public service provider
• a contract administrator (purchaser).
The Office of the Correctional Services Commissioner's (OCSC) role was to regulate, develop minimum standards, advise on policy, manage sentences, monitor service delivery, and manage the strategic direction of the overall Victorian prison system. The roles prescribed for the OCSC were commonly discerned as the 'steering' function of government -following Osborne and Gaebler's influential advocacy of government as 'steering not rowing'.
The second main group of players was the three private service providers (two private providers after 2000), who financed, designed, constructed and managed the prison facilities.
The third main player was the public service provider (CORE-the Public Correctional Enterprise) who managed the delivery of services through the remaining public prisons (and community corrections).
The final player was the contract administrator, who formally purchased the services on behalf of government and managed the contracts and agreements with both the public and private service providers.
To enable these structural and organisational changes in the public sector, the government enacted a huge amount of enabling legislation.
Various authors have reflected with concern on the ability of the initial steering-rowing model in Victoria to carry out its functions accountably and independently. Concerns surrounded lack of true competition, lack of separation of the inspection and monitoring, freedom of information, the ombudsman, commercial-in-confidence, and incompetence of operators. In 1999 the Victorian Auditor-General prepared a comprehensive special report on Victoria's prison system and found a number of problems, including shortcomings with the independence of the commissioner's office. In this report, the Auditor-General made a number of recommendations in relation to the factors that adversely affected the overall independence of the OCSC:
• The regulatory framework featured a commissioner who was subject to the direct influence of the department. A truly effective commissioner would require a framework whereby the commissioner is placed at arm's length from the department.
• The commissioner should have a direct line of accountability to the parliament, or via the minister to the parliament and should formally report the results of monitoring activities on a regular basis.
In the shadow of these criticisms, the Bracks Labor Government, elected in September 1999 instigated its own reforms. On 1 July 2003, the Minister for Corrections announced another restructuring of
Victoria's corrections sector under the banner 'A More Seamless System'. He announced the establishment of a single authority to oversee Victoria's entire corrections sector, Corrections Victoria, in which both the former OCSC and the public provider now reside.
Under this new structure the Corrections Commissioner heads the prison service. Minister Haermeyer articulated the role of Corrections Victoria as being:
responsible for leadership of the correctional system and oversight of the community corrections and public and private prison contract administration and management, standard setting for service delivery, direct delivery of publ1cly provided correctional services, managing prisoner complaints and maintaining ethical standards.
These are many roles previously undertaken by the (then) separate OCSC under the previous steering-rowing model. As part of this restructure, the Corrections Inspector, a new monitoring and inspectorate business unit exists. The head of this small unit reports directly to the Secretary to the Department of Justice. The unit carries out many of the roles once undertaken by the Monitoring and Review Unit within the former OCSC.
The newly created role of Corrections Inspector goes to the heart of the accountability of the overall Victorian prison service. It is responsible for a number of accountability mechanisms and remedies as outlined earlier by Neave. This office was designed to provide information for inclusion in reports and advice that will contribute to the various government accountability mechanisms. These mechanisms include parliamentary committees, inquiries, reviews and annual reports. In addition, the inspectorate business unit deals with administrative law remedies such as freedom of information requests.
The principal flaw in the new corrections model is that the Inspector reports to the Secretary of the Department and not to parliament as recommended by the Auditor-General. Years before, Harding had already supported the general thrust of the Auditor General's position. He argues that it is imperative that the inspector be independent and that reports be tabled in parliament, 'not merely presented to the minister of justice', otherwise it is just a case of management reporting for the benefit of management'.
In short, this restructure of Victoria's prison system has provided no more independence to the monitoring of performance and other regulatory functions than the previous one.
Additionally this restructure has had the effect of integrating the commissioner's office (along with its roles in industry leadership, contract administration and management, standard setting, prisoner complaints and ethical standards) with the public sector prison provider. This may have put at risk any potential benefits of competition brought to the prison system by its part privatisation.
So, fundamentally, the latest 2003 restructure does not address the Victorian Auditor-General's 1999 concerns about the independence of the Victorian prison system. In effect, compared to the 'steerer-rower' model of 1997-2003, the current arrangement is less independent. Interestingly, this conclusion is the opposite to one of the claims made by the Minister in his media release. This exposes the prison system, in general, and the public provider, in particular, to serious questions about its ability to respond to accountability challenges raised by NPM. Many writers highlight the importance of independent institutions such as regulators, monitors, ombudsmen and auditors-general in enhancing the accountability of the public sector in the NPM environment. evident that the independence of the regulatory and monitoring roles in particular are compromised under the current model.
In summary, and looking at the new prison system structure through the lens of accountability, there are significant tensions in the ability ofVictoria's corrections inspector to provide truly independent reports to parliament.This does not augur well for the future of the accountability in Victoria's prison system.
To ensure accountability, the Victorian prison system will need to develop a regime whereby the public provider, the commissioner, the inspectorate and the Secretary of the Department of Justice can all operate independently. Without this step, and without the introduction of direct lines of accountability, there will have been no real progress, administratively speaking, since the 1980s.
Furthermore, to ensure true competition, and through market forces, the public provider needs to be subject to the same accountability standards as private operators. Otherwise, at the risk of sounding like an apologist for the private prison providers, the monitoring of standards within the public prisons cannot be guaranteed.
This article has broadly reviewed a number of historical and contemporary developments and issues in the public sector as well as the simultaneous evolution and application of these concepts to the Victorian prison system. In addition, a number of questions about the independence and accountability consequences of the new corrections inspections and regulatory framework have been exposed.
In relation to a more relevant public accountability model for a contemporary public sector, Brennan raises a 'basic question for consideration, namely; the suitability for the future of the parliamentary system of government and its associated accountability models and their conventions'.
This question is apt for the Victorian prison system. In both prisons and governments as a whole, new thinking around the concepts of independence and accountability needs to be fully debated to take account of the NPM realities.
There are efforts being made to tackle some of the challenges that today's NPM-dominated public sector raises for accountability. It is now time for public administrators, academics and others to direct their intellectual energies toward assessing our public accountability institutions, mechanisms, remedies, procedures and relationships to ensure that they fit today's public administrations and the new global realities, and specifically the Victorian prison system.
[*] VALARIE SANDS works in the Centre for the Study of Privatisation and Public Accountability; Faculty of Law, Monash University. firstname.lastname@example.org
©2004 Valarie Sands
Thank you to David Coghill for research assistance.
 See, eg, Amanda George and Sabra Lazarus, 'Private prison: the Punished, the Profiteers, and the Grand Prix of State Approval', (199S) 4 (March) Australian Feminist Law Journal 153-73; Al James, A K Bottomley. A Liebling and E Clare, Privatizing Prisons (1997).
 Norval Morns and David J Rothman, 'Introduction', in Norval Morns and David J Rothman (eds), The Oxford History of The Prison The Practice of Punishment in Western Society ( 1998).
 Robert Hughes cited 1n John Hirst. 'The Australian Experience: The Convict Colony', in Norval Morns, and David J Rothman
(eds), above n 2
 Owen E Hughes, Public Management and Administration An Introduction (3rd ed, 2003)
 The TMPA was often criticised, even in the early 20th century; see for example Sidney and Beatrice Webb (1920, cited
in Barbens 1998) who believed ministerial responsibility was ‘illusory as an instrument of democratic control'
 Hughes, above n 4
 Mike Vertigan,'Launch of the Management Reform Program- Its Place in Reforming the Operations of the Public Sector', (Secretary, Department of Treasury and Finance, Open Day, Hotel Sofitel Melbourne, 6 November 1997)
 Prisoners may apply for three days to be removed from their sentence for each day they are confined to their cell due
to industrial issues
 Richard Harding, 'Privatisation of Prisons', The Law Report, 17 June 1997, Radio National Transcript, 2
 J Chan, 'The Privatisation of Punishment. A Review of the Key Issues', in Paul Moyle (ed) Private Prisons and Police Recent Australian Trends ( 1997)
 Office of Corrections (Victoria), 'Protecting the Community and Rehabilitating Offenders', ( 1992) Keypoints 10-11.
 See, eg, R 0 Douglas, 'The Ends and the Means' in S Walker (ed), Rogernomics. Reshaping New Zealand's Economy, Auckland Centre for Independent Studies, New Zealand ( 1989); Hughes, above n 4, Industry Commission, Competitive Tendering and Contracting by Public Sector Agencies (1996), Mohan Kaul, 'Reform Strategies of Commonwealth Public Services' in John Halligan (ed), Public Service Reform (Centre for Research in Public Sector Management in collaboration with IASIA, University of Canberra, 1998); Richard Mulgan, 'Identifying the "Core" Public Service', ( 1998) 98 Canberra Bulletin of Public Administration 1-7; Gary L Sturgess, 'Virtual Government' What Will Remain inside the Public Sector?', ( 1996) 55(3) Australian Journal of Public Administration 59-73, Patrick Weller, 'The Role of the Public Sector International Trends and Challenges', in Ian Scott and Ian Thynn, (eds), Critical Issues and Perspectives (1993) 31-58.
 Richard Mulgan, Holding Power to Account Accountability in Modern Democracies, (2003); Patrick Weller, above n 12, Patrick Weller Don't Tell the Prime Minister (2002)
 See, eg, G A Hodge and K Coghill,'Accountability in the Privatised State' (Paper presented at 7th lnternational Research Symposium on Public Management, Hong Kong, 4 October 2003); Marcia Neave, (Chairperson) of Administrative Review Council The Contracting Out of Government Services Report to the Attorney General, ARC Report No 42 ( 1998), M Taggart, 'The Impact of Corporatisation and Privatisation on Administrative Law', ( 1992) 51 (3) Australian Journal of Public Administration 368-73.
 Hughes, above n 4
 Bruce Stone, 'Administrative Accountability in 'Westminster Democracies Towards a New Conceptual Framework' ( 1995) 8(4) Governance An International Journal of Policy and Administration 505-25.
 Neave, above n 14.
 Peter Barbens, 'The New Public Management and a New Accountability', ( 1998) 76 Public Administration 451-70.
 Mulgan, above n 13.
 Today, this model would probably be referred to as a Build, Own. Operate and Transfer (BOOT) model.
 Tim Daly, 'Policy Overview and Framework for Prison Privatisation in Victoria’, (Paper presented at Privatisation and Public Policy: A Correctional Case Study Conference, Australian Institute of Criminology, Melbourne, 1-17 June 1997).
 David Osborne and Ted Gaebler, Reinventing Government How the Entrepreneurial Spirit is Transforming the Public Sector ( 1993)
 Such as the Public Sector Management Act I 992 (Vic) and the State Owned Enterprises Act I 992 (V1c), as well as changes to the Ombudsman Act I 973 (V1c) and Freedom of Information Act I 982 (Vic) In addition, changes specifically dealing with the prison system were made to the Corrections Act I 986 (Vic)
 J Ernst, 'A Brief Critical Survey of Pnvat1sat1on', (Paper presented at Public First RMlT Conference on Privatisation of Utilities and Human Services, Melbourne, February, 1995), George and Lazarus, above n 1; Harding, above n 9
 The Hon Andre Haermeyer (Minister for Corrections) 'Corrections Victoria-A More Seamless System', (Media Release,
I1 July 2003).
 Auditor General of Victoria, ' Victoria 's Prison System: Community Protection and Prisoner Welfare', Special Report No 60, ( 1999); Peter Kirby (Chairman),Vivienne Roche and Brian Greaves, Independent Investigation into the Management and Operations of Victoria's Private Prisons (Department of Justice, Victoria 2000).
 Richard Harding, Private Prisons and Public Accountability (1996); Richard Harding. 'Private Prisons', (2001) 28 Crime and Justice
 Harding (2001) above n 28, 319, 317
 Haermeyer, above n 26.
 Mohan Kaul, above n 12; Neave, above n 14.
 The Hon Sir Gerard Brennan AC KBE, Chief Justice of Australia, 'The Parliament, The Executive and The Courts: Roles and Immunities' (Speech delivered at School of Law, Bond University Queensland, 21 February 1998) <www.hcourt.gov.au/speeches/brennanj/brennanj_bond2.htm> at 17 February 2004.