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CORRECTIONS MANAGEMENT BILL 2006
2006
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
CORRECTIONS MANAGEMENT BILL 2006
EXPLANATORY STATEMENT
Circulated by authority of
Simon Corbell MLA
Attorney General
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
2
Corrections Management Bill 2006
Outline
The Corrections Management Bill 2006 (the Bill) provides the law that will govern
the treatment and management of prisoners and other detainees in the Australian
Capital Territory.
The Bill is informed by human rights principles and jurisprudence as it stands at the
time of the Bill's introduction to the Assembly. Powers and decisions contemplated
by the Bill are also crafted to reflect contemporary administrative law principles,
which in many cases are also an expression of human rights jurisprudence.
It is the government's intention that this Bill would replace the Remand Centres
Act 1976. The new Act would govern the new prison anticipated for the ACT, the
Alexander Maconochie Centre (AMC), as well as any present and future corrections
facilities.
The ACT's Human Rights Act 2004 protects fundamental rights. Any limits on these
rights are only permissible if they are authorised by a Territory law and are reasonable
and demonstrably justifiable in a democratic society. The Bill contemplates the
minimum conditions and management of people, whose right to liberty is lawfully
limited.
Consistent with section 28 of the Human Rights Act 2004, the Bill sets out reasonable
limitations upon a sentenced offender's human rights, or a detainee's rights, consistent
with the object of the Bill.
The Bill's provisions are consistent with modern prison management. The Bill covers
admission, living conditions, searches, segregation, alcohol and drug testing, the use
of force, disciplinary processes and leave processes. The powers and discretions
assigned to the government are not open-ended: they are clear rules for all concerned
to abide.
Following the passage of the Crimes (Sentencing) Act 2005 and the Crimes (Sentence
Administration) Act 2005, the Corrections Management Bill 2006 completes the suite
of new legislation contemplating sentences in the ACT. The three pieces of law use
consistent concepts, methods, and replace many duplicate sets of powers and
processes with one set.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
3
Corrections Management Bill 2006
Detail
Preamble
In Australia, courts interpret a preamble as part of an Act. The ACT's Legislation
Act 2001 enables this common law presumption about Acts to apply in conjunction
with the Legislation Act 2001.
Although the preamble is recognised as part of the Act, in Bowtell v Goldsbrough,
Mort & Co Ltd (1905) 3 CLR 444 and Wacando v Commonwealth of Australia and
the State of Queensland (1981) 148 CLR 1 the High Court recognised the preamble as
a means to assist in the interpretation of a provision of the Act. The preamble cannot
be relied upon to restrict or "cut down" unambiguous provisions of an Act.
The Bill's preamble is written in the context of the fundamental legal relationship
between the citizens of a community and the community's government. A
government may only act in accord with a law that permits it to do so: citizens,
conversely, are free to act in any manner that does not breach the law.
The Executive arm of government does not have unlimited power when managing
prisoners and other detainees. An important measure of maintaining society's
confidence in the criminal justice system is the lawful treatment of prisoners.
In order to maintain the community's confidence in the criminal justice system, the
government is bound to ensure that people found guilty of breaking the law are
themselves treated lawfully. In a Letter from Birmingham Jail, 1963
Martin Luther King made the point that "Injustice anywhere is a threat to justice
everywhere."
Item one of the preamble evokes Article 10 of the International Convent on Civil and
Political Rights: "All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person."
Item two ensures that the Corrections Management Bill is intended to be interpreted in
a manner that upholds the Human Rights Act 2004.
Item three states the principle that the deprivation of liberty is the punishment that
flows from a sentence of imprisonment. The conditions of imprisonment and the
management of prisoners are not to be so harsh as to create an additional punishment
to the sentence.
This reflects the guiding principle in the Standard Guidelines for Corrections in
Australia 1996, endorsed by Corrective Services Ministers in Melbourne during 1996,
that correctional programs are by the deprivation of liberty to varying degrees. The
deprivation of liberty is the punishment and any correctional program should not
aggravate the suffering inherent in the punishment.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
4
The Alexander Maconochie Centre Functional Brief, published in March 2005, states
that the AMC "is to be a secure and safe place that will have a positive effect on the
lives of prisoners held there and on staff who work there. Its management and
operations will give substance to the dictum of Sir Alexander Paterson that offenders
are sent to prison as punishment, not for punishment" [at page 5].
In Kalashnikov v Russia 47095/99 ECHR 2002, the European Court of Human Rights
considered whether the conditions of a Russian prison exceeded acceptable
consequences of the deprivation of liberty. In that case the court considered prison
conditions of overcrowding, infestation of vermin, failure to quarantine prisoners with
serious communicable diseases, lack of adequate ventilation etc. The court noted that:
. . . the State must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, his health and well-being are adequately
secured. [at 95]
Likewise, the Human Rights Committee of the United Nations notes that States have:
. . . a positive obligation towards persons who are particularly vulnerable because of
their status as persons deprived of liberty, and complements for them the ban on torture
or other cruel, inhuman or degrading treatment or punishment contained in article 7 of
the Covenant. Thus, not only may persons deprived of their liberty not be subjected to
treatment that is contrary to article 7, including medical or scientific experimentation,
but neither may they be subjected to any hardship or constraint other than that resulting
from the deprivation of liberty; respect for the dignity of such persons must be
guaranteed under the same conditions as for that of free persons. [General Comment
21, Article 10 (Forty-fourth session, 1992), Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI\GEN\1\Rev.1 at 33 (1994), at para 3]
This is also consistent with chapter 25 of the Human Rights Act 2004: Guidelines For
ACT Departments Developing Legislation and Policy and the case law supporting the
guidelines.
Item four speaks to the management of offenders by the Territory's corrections
authority. One of the fundamental purposes of the Bill is to promote community
safety and to uphold the law by ensuring that those sentenced to imprisonment, or
otherwise lawfully detained, remain in custody for the relevant time.
Detainees in the government's custody should be managed in a manner that respects
the needs of victims, works to rehabilitate offenders and is humane.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
5
Chapter 1 -- Preliminary
Clause 1 -- Name of Act
This is a technical clause that names the short title of the Act. The name of the Act
would be the Corrections Management Act 2006.
Clause 2-- Commencement
This clause enables the Act to commence on a day nominated by the Minister in a
commencement notice. The provisions for a commencement notice are set out in
section 77 of the Legislation Act 2001.
If the Minister does not commence the Act six months after the Act is notified on the
Legislation Register, then the Act automatically commences the following day. The
provisions for automatic commencement are set out in section 79 of the Legislation
Act 2001.
Clause 3-- Dictionary
This is a technical clause identifying the dictionary and explaining conventions used
to define words and terms.
Clause 4 -- Notes
This is a technical clause explaining the status of notes to the Act.
Clause 5 -- Offences against Act -- application of Criminal Code etc
This clause makes it clear that the Criminal Code 2002 applies to the Act. The
subsequent Act should also be read in conjunction with the Legislation Act 2001,
which provides for interpretation, common definitions, and legislative machinery for
the ACT.
Clause 6 -- Application of Act -- detainees
Clause 6 specifies that the Act will apply to people who are to be detained because
they are sentenced to imprisonment, remanded or otherwise lawfully ordered to be
detained.
Clause 6(a) refers to part 3.1 of the Crimes (Sentence Administration) Act 2005, which
groups the sources of authority to determine, impose and re-impose sentences of
imprisonment under the concepts of committal order and committing authority.
Part 3.1 of the Crimes (Sentence Administration) Act 2005, contemplates the court's
authority to determine and impose a sentence; the sentence administration board's
authority to suspend or cancel periodic detention, or cancel parole, and hence
re-impose an existing sentence; and the board's power to cancel a release licence and
hence re-commit an offender to prison.
Clause 6(b) refers to part 5.3 of the Crimes (Sentence Administration) Act 2005. An
offender sentenced to serve imprisonment by way of periodic detention must report
for each detention period within the term of their sentence. They must report at the
correct time on the correct day. They must report in accord with any directions given
by the chief executive.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
6
Clause 6(c) refers to part 3.2 of the Crimes (Sentence Administration) Act 2005. This
part provides the chief executive with the authority to detain remandees, as distinct
from prisoners. In some cases the remandee will be both a prisoner and a remandee if
the person is serving a sentence and is required to attend a hearing.
Clause 6(d) contemplates detainees who are held in custody at an ACT corrections
facility by any other law that could apply to the ACT's jurisdiction. Examples are
given for the kinds of authority, and hence the kinds of detainees, contemplated by
clause 6(d).
(2) clarifies that the Bill is not intended to displace the provisions in part 4.3 of the
Crimes (Sentence Administration) Act 2005 that authorise NSW custodial law to apply
to ACT prisoners imprisoned in NSW.
(3) clarifies that the Bill does not displace any custodial provisions in the Children
and Young People Act 1999 that apply to any children and young people sentenced
under that Act. However, there are exceptional provisions in the Children and Young
People Act 1999 that authorise detention of young people in adult facilities. In those
circumstances this Bill would apply to those people.
Chapter 2 -- Objects and principles
Clause 7 -- Main objects of Act
The main function of a prison or a remand centre is to hold people in secure custody.
This function is a means to both uphold the law and provide protection to the
community from people who pose a risk to the community in the context of criminal
justice.
Clause 7 also reflects the philosophy of the `Healthy Prison'. As set out in the
Alexander Maconochie Centre Functional Brief, "A Healthy Prison is one in which:
· everyone is, and feels, safe;
· everyone is treated with respect as a fellow human being;
· everyone is encouraged to improve himself or herself and is given the
opportunity to do so through the provision of purposeful activity; and
· everyone is enabled to maintain contact with their families and is prepared
for release." [2005, page 5]
The objects in (a), (b), (c) and (d) summarise the overarching tasks of the relevant
Minister when administering the foreshadowed Act.
Clause 8 -- Management of correctional services
Akin to clause 7, clause 8 summarises the overarching tasks of the relevant agency,
currently ACT Corrective Services, when administering the foreshadowed Act.
Clause 8(a) clarifies that public safety is the most important consideration in the
management of detainees. The reason for the Act's existence, and the agency's
responsibilities under the Act, is to secure relevant people in custody.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
7
While the Bill is a comprehensive expression of the powers the Territory's correction
agency may exercise, it is not possible to foretell every possible crisis a corrections
facility may face. The intent of this clause is to ensure that if a decision has to be
made regarding the security of the corrections facility -- and the law for that decision
is not set out in the Act -- the corrections agency is obliged to regard public safety as
its first task and its ultimate task.
In carrying out the task of detention, clause 8(b) invokes the obligation that the
agency should carry out the task in a manner that respects the humanity of all
involved.
Clause 8(c) promotes best practice in the Territory's corrections agency. The
International Centre for Prison Studies at Kings College in the United Kingdom has
emphasised the importance of ethical prison management and staff:
"Prison management needs to operate in an ethical context. Without a strong ethical
context, the situation where one group of people is given considerable power over
another can easily become an abuse of power . . . A sense of the ethical basis of
imprisonment needs to pervade the management process from the top down." [A
Human Rights Approach to Prison Management, 2002, page 13]
Clause 8(d) reflects the fact that the Bill will provide the Territory's corrections
agency with various powers that may impact upon victims. For example, the Bill
contemplates special leave for prisoners, the ability for prisoners to use the phone or
mail. Unfortunately, some offenders want to keep harassing their victims even during
their imprisonment. Clause 8(d) ensures that the protection of victims is an
overarching consideration in any decision exercised under the Act.
Clause 9 -- Treatment of detainees generally
Clause 9 provides that the Bill's functions are to be implemented in a manner that
upholds human rights. Consistent with section 28 of the Human Rights Act 2004, the
Bill sets out reasonable limitations upon a sentenced offender's human rights, or a
detainee's rights.
Clause 9(a) to (c) ensures that any exercise of power under the Bill must uphold a
detainee's human rights, ensure humane and just treatment and cannot be used to
engage in torture or cruel, inhuman or degrading treatment.
Clause 9(d) emphasises the principle that there is no arbitrary power, or right, for the
government to inflict additional punishments on prisoners. As discussed under item
three of the preamble, prisoners and detainees retain their rights as human beings with
the exception of those rights lost as a consequence of their detention. Following
human rights jurisprudence, the totality of the conditions of the sentence or remand
should not create a further form of punishment, or cruel treatment, beyond the
sentence itself. For example, the purposeful creation of hot conditions, the purposeful
deprivation of sleep etc.
Clause 9(e) refers to the minimum conditions listed in section 12 and detailed in
chapter 6 of this Bill.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
8
Clause 9(f) requires that the treatment of an offender should promote rehabilitation, in
conjunction with any formal rehabilitation programs contemplated by clause 7(d).
This is consistent with the `healthy prison' concept, discussed above at clause 7.
Clause 10 -- Treatment of remandees
Akin to clause 9, clause 10 ensures that the Bill's functions in relation to remandees
are consistent with human rights. In addition to the provisions of clause 9, clause 10
ensures that a remandee's right to be presumed innocent is upheld and that the
circumstance of detention is not a punishment of the person.
Clause 10(2) contemplates remandees who are convicted for the offence in question
or imprisoned for another offence. In these cases detention may be regarded as
punishment and a presumption of innocence does not apply to offences proven. If a
person is already serving a sentence of imprisonment, and is imprisoned, but the
person is also remanded during a hearing for another offence, section 18 of the Crimes
(Sentence Administration) Act 2005 provides the corrections agency with the authority
to determine where the person should be held.
Clause 11 -- Treatment of certain detainees
Clause 11 ensures that anyone held in custody is recognised and that any of the Bill's
functions applicable to this category of person are to be implemented in a manner that
upholds human rights.
As discussed in clause 6 above, it is possible that detainees may be held in custody at
an ACT corrections facility by another law that could apply to the ACT. For example,
a person held on a warrant under the Royal Commissions Act 1991 (Cth), or a person
detained under the Migration Act 1958 (Cth).
Clause 11(3) enables the Executive to make regulations where the law authorising the
detention and how that detention is to be exercised conflicts with the Bill. The aim of
the clause is to authorise necessary modifications to reconcile the conflicting laws.
For example, a Commonwealth law may be more restrictive about the rights of certain
detainees to communicate with the community. In this instance there may be a
conflict with the Bill. Generally, where an ACT law is found to be inconsistent with
Commonwealth law, Commonwealth law has the right of way. Under these
circumstances the ACT Executive may make regulations to resolve the inconsistency.
Clause 12 -- Correctional centres -- minimum living conditions
Clause 12 lists the minimum standards that must apply at correctional centres. The
detail of each standard is set out in chapter 6, below.
These conditions are derived from the United Nations Standard Minimum Rules for
the Treatment of Prisoners (1957); A Human Rights Approach to Prison
Management, The International Centre for Prison Studies at Kings College, United
Kingdom, 2002; International Prison Policy Development Instrument, International
Centre for Criminal Law Reform and Criminal Justice Policy, Vancouver, Canada,
2001; European Prison Rules, Council of Europe Committee of Ministers to Member
States, 2006.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
9
Chapter 3 -- Administration
Historically, prisons were seen as the absolute realm of gaolers: prisoners were either
formally stripped of legal rights, or prevented from exercising any rights. In 1949 the
High Court held the view that prisoners did not have legal rights to challenge
decisions made by prison administrators. In Flynn v King (1949) 79 CLR 1 the then
Justice Dixon said:
". . . if prisoners could resort to legal remedies to enforce gaol regulations,
responsibility for the discipline and control of prisoners in gaol would be in some
measure transferred to the courts administering justice. For if statutes dealing with this
subject matter were construed as intending to confer fixed legal rights upon prisoners it
would result in application to the courts by prisoners, for legal remedies addressed to
the Crown or to the gaoler in whose custody they remain. Such a construction of the
regulation making power was plainly never intended by the legislature and should be
avoided." [at 8]
In essence the High Court ruled in 1949 that unlike other citizens, prisoners had no
recourse to seek judicial review of Executive acts that directly affected them.
As with any power left unchecked, prison culture reached breaking point in the 1970s
resulting in a series of riots and revelations of institutional violence. The NSW
Government commissioned Justice Nagle to conduct a Royal Commission into NSW
Prisons, resulting in the Nagle Report. Commissioner Nagle documented the kinds of
unchecked powers that were being abused by prison authorities and denied prisoners
the most basic of rights. The statutory proceedings governing discipline processes, for
example, were not being followed and decisions were affected by bias without due
regard to evidence.
In the United Kingdom the 1979 case of R v Board of Visitors of Hull Prison; ex parte
St Germain (No.1) [1979] QB 425, revealed that a lack of judicial scrutiny of prison
disciplinary systems allowed processes that failed the basic principles of natural
justice. In St Germain the Court of Appeal determined that the relevant authority
determining prison discipline was subject to the supervisory jurisdiction of the UK
High Court. In essence, that the administrative decisions relevant to discipline could
be reviewed for lawfulness by a court with appropriate jurisdiction.
Since the 1970s Australian courts have set aside the ruling of Dixon in Flynn and
allowed prisoners to apply for judicial review on a range of matters.
Matters can include:
· Decisions affecting release -- Smith v Corrective Services Cmr of NSW (1980)
147 CLR 134, Kelleher v Parole Board of NSW (1984) 156 CLR 364, Ex parte
Fritz (1992) 59 A Crim R 132;
· Procedural fairness in disciplinary processes -- Leech v Deputy Governor of
Parkhurst Prison [1988] AC 533; Bromley v Dawes (1983) 34 SASR 73;
Maybury v Osborne [1984] 1 NSWLR 579; Hogan v Sawyer; Ex parte Sawyer
[1992] 1 Qd R 32;
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
10
· Conditions of imprisonment: R v Walker [1993] 2 Qd R 345, Binse v Williams
& anor [1998] 1 VR 381; Collins v State of South Australia (1999) 74 SASR
200; and
· Leave from prison: Jackson v Director-General of Corrective Services (1990)
21 ALD 261.
While Australian courts have recognised the rights of prisoners to seek judicial
review, at the time of this Bill courts have paid great deference to the decisions made
by prison administrators.
The Bill is drafted with the intent of clearly setting the boundaries of any power
allocated to the Territory's corrections authority. This aims to assist any court
reviewing a decision to ascertain the extent of the powers the Assembly intended to
give the Minister, the chief executive or corrections officers.
This is also consistent with human rights jurisprudence and best practice. Section 30
of the Human Rights Act 2004 (HRA) requires all ACT laws to be interpreted, as far as
possible, in a way that is consistent with the rights set out in the HRA. The Guidelines
for Developing Policy and Legislation under the HRA (March 2005) state that: "In
practice, section 30 means that courts, tribunals and administrative decision makers
must act consistently with the HRA unless a Territory law clearly provides otherwise.
A person exercising a statutory discretion must exercise that discretion consistently
with human rights" [page 7].
By clearly setting out the limitations of any discretions to be exercised by corrections
officers, the Bill aims to leave no doubt as to what is intended to be lawful, and what
is not.
Rather than allocate various open-ended powers to standing orders, as is currently the
case, the Bill provides a context for how the powers are to be exercised.
Consequently, the Bill authorises the chief executive to prescribe operating
procedures and policies that are within the boundaries set by the Bill.
Part 3.1 -- Administration -- General
Clause 13 -- Ministerial directions to chief executive
Clause 13 provides an ability for the government to direct the chief executive to
administer specified functions in the Act in a particular way. The direction would
enable modification or change of operating procedures under clause 14, for example,
or require the chief executive to put an operating procedure in place.
The power is included to enable the government to act without delay to decisions of
the Supreme Court, or recommendations from any inquiry or royal commission.
Any direction must be publicly notified in accord with the Legislation Act 2001.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
11
Clause 14 -- Corrections policies and operating procedures
In her review of Quamby, the place of detention for offenders under 18 years old, the
ACT Human Rights Commissioner noted that there were important matters that were
not in the substance of the Children and Young People Act 1999 relating to detention,
the use of force, personal searches etc. The Commissioner wrote that the substance of
matters like these should be in the principle legislation, not in regulations or standing
orders [Human Rights Audit of Quamby Detention Centre, ACT Human Rights
Office, June 2005, pages 29 & 30].
Mindful of the Commissioner's advice and her contribution to the development of this
Bill, the Bill provides the substance to the powers and functions to be exercised by
ACT Corrective Services.
Clause 14 enables the chief executive to make and notify policies and operating
procedures within the framework of the powers set out in the Bill.
Consistent with accountability, 14(2) and (3) ensure that policies and procedures are
public documents, and are also available to detainees. These documents may be
exempted from being a public document under section 15.
Clause 15 -- Exclusion from notified corrections policies and operating
procedures
Clause 15 enables policies and operating procedures that relate to the security of the
prison, or may endanger public safety etc, to be exempt from notification or
availability for perusal.
Clause 15(2) ensures that the documents are still open to accountability by requiring
them to be available for inspection by the officials listed.
The clause enables regulations to be made to prescribe any criteria that would make a
policy or procedure eligible for exemption. Regulations can also be made to extend
the list of officials who are entitled to examine exempted documents.
Clause 16 -- Chief executive directions
Clause 16 provides an overarching power for the chief executive to give directions to
detainees. Under (3) the direction can be verbal or written. The direction can be to one
detainee, or all detainees.
The items in (2) provide for the most likely rationale that would inform a direction
from the chief executive. However, the power is not limited to the three purposes in
(a), (b) and (c).
Clause 16(4) ensures that the substance of any lawful direction given by the chief
executive is upheld if there is something wrong with the form of the direction. For
example, if a direction is normally issued by way of a standard form the fact that the
form was not used would not render the direction invalid. However, if the chief
executive was required by the Act to use a prescribed form, or a prescribed set of
words, the direction may be unlawful.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
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Clause 17 -- Chief executive delegations
Clause 17 expressly provides for the delegation of any of the chief executive's powers
to corrections officers.
The Australian Capital Territory (Self-Government) Act 1988 (Cth) and the Public
Sector Management Act 1994 authorise the ACT Government of the day to allocate
the administration of Territory Acts to Ministers and departments via the
administrative orders.
The present Administrative Orders allocates relevant corrections Acts to the Chief
Executive of the Department of Justice and Community Safety, who in turn delegates
these powers to the Executive Director of ACT Corrective Services.
Future governments may wish to change these arrangements. The reference
throughout the Bill to the office of chief executive enables the powers to be delegated
flexibly once the Administrative Orders are made. In this way the Bill does not
inadvertently dictate the structure and tasks of any agency that may be assigned to
carry out the functions in the Bill.
Clause 18 -- Chief police officer delegations
Clause 18 expressly provides for the delegation of any of the chief police officer's
powers under this Bill to police officers.
Rather than presume, or predetermine, the organisational division of labour of ACT
Policing, the Bill allocates any relevant powers to the chief police officer, or police
upholding ACT law in general. This clause facilitates the chief police officer's ability
to create a division of labour by authorising the chief police officer to delegate
functions.
Part 3.2 -- Corrections officers
Clause 19 -- Corrections officers -- appointment
Clause 19 enables the chief executive to appoint public servants as corrections
officers, or appoint people who are not public servants as corrections officers.
Part 5 of the Public Sector Management Act 1994 covers the appointment of public
servants. Section 68 sets out the factors that must be considered when appointing a
public servant:
(1) Subject to subsection (2), the appointment of a person to the service as an officer
shall be made by the relevant chief executive.
(2) A person shall not be appointed to the service unless--
(a) he or she has been selected for appointment in accordance with the provisions
of this Act and the management standards; and
(b) the person is an Australian citizen or a permanent resident of Australia; and
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(c) the commissioner, or the chief executive making the appointment, as the case
may be, has certified in writing that after due inquiry he or she is satisfied that the
person is a fit and proper person to be so appointed having regard to--
(i) verification of the person's identity; and
(ii) whether the person has any prior criminal convictions; and
(iii) the previous employment record of the person; and
(iv) the need for suitable references in support of the person's application
for appointment; and
(v) verification of the person's educational qualifications required for the
appointment.
Clause 19(2) ensures that anyone appointed as a corrections officer, whether a public
servant or not, has the requisite skills, experience or qualifications to be a corrections
officer.
Clause 20 -- Corrections officers -- functions
As discussed in relation to clause 17, above, expressly provides for the delegation of
any the chief executive's powers to corrections officers. The Bill also allocates
powers to corrections officers in general by referring to corrections officers when
stipulating the power or function.
Clause 20 and clause 17 informs the Bill's references to the functions of the chief
executive and corrections officers. Clause 20(1)(b) clarifies that any function
allocated to corrections officers in general does not displace the chief executive's
authority to give directions in the exercise of those functions. Likewise, any directions
given by a delegate of the chief executive must also be followed.
Clause 20(2) enables for a more formal division of labour to be created amongst
corrections officers, a hierarchy of powers for different ranking corrections officers,
or a limitation of powers depending upon where or what the officer is assigned to.
Clause 21 -- Doctors -- health service appointment
Clause 21 requires the chief executive to appoint at least one doctor for each
correctional centre. The appointed doctor contemplated by this clause would only
provide therapeutic services to detainees. Clause 22 below creates an authority to
appoint other health professionals, including doctors, to conduct medical tasks that are
not therapeutic.
The purpose of creating two sets of appointed health professionals is to prevent
treating doctors from having to engage in medical tasks that are related to the security
of the corrections facility. Best medical and human rights practice advocates separate
people to conduct therapeutic and non-therapeutic tasks in a detention setting. The
rationale for this separation is to protect detainees' trust and confidence in any doctor
who provides treatment.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
14
The Bill relies upon the Legislation Act 2001 definition of `doctor':
(a) means a person unconditionally registered as a medical practitioner under the
Health Professionals Act 2004; and
(b) for an activity, includes a person conditionally registered as a medical practitioner
under the Health Professionals Act 2004 to the extent that the person is allowed to do
the activity under the person's conditional registration.
Clause 21(2) requires appointed doctors to provide health care to detainees and to take
steps to prevent health problems at corrections facilities.
Clause 21(3) sets a statutory minimum level of service to be made available to
detainees each week.
To ensure any medical decisions to prevent the spread disease are implemented,
clause 21(4) empowers appointed doctors to give written directions to the chief
executive. However, (5) ensures that any direction of this nature would not
compromise security or order at the facility.
The power in (5) is provided only to be used when absolutely necessary. The
government envisages that ACT Health and ACT Corrective Services will establish
the relevant agreements and protocols to foster a close working relationship between
health service providers and corrections officers.
The effect of clauses 21 and 22 do not prevent a non-convicted detainee from seeking
therapeutic treatment from a doctor of their choice. In these circumstances, the chief
executive is not obliged to pay for the service.
Clause 22 -- Health professionals -- non-therapeutic functions
Clause 22(1) requires the chief executive to appoint health professionals to carry out
medical tasks under the foreshadowed Act that are not therapeutic. For example,
taking a blood sample for a drug test, or conducting a body search. The clause
contemplates health professionals as set out in the Health Professionals Act 2004, as
some tasks may not require a doctor only.
Each provision of the Bill that requires a medical procedure also stipulates the kind of
doctor or health professional that may carry out the task.
Clause 23 -- Identity cards
Clause 23 sets out the particulars of identity cards that must be issued to corrections
officers and health officers, and returned by former officers.
It is an offence not to return an identity card within 7 days after a person stops being a
corrections officer. The government has determined that the offence warrants being a
strict liability offence on the basis that identity cards at large would pose a significant
risk to the security of corrections facilities and other corrections activities. People
appointed to work in a corrections service would be reasonably expected to know that
retaining personal possession of an identity card poses a risk to the facility's security.
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The defences to strict liability offences are set out in section 36 of the Criminal
Code 2002.
Part 3.3 -- Correctional centres
Clause 24 -- Correctional centres -- declaration
Clause 24 enables the Minister to declare places to be correctional centres. Any
declaration must be notified on the Legislation register.
The examples provided are to demonstrate that the declaration may be made in broad
terms and can include land around a building.
Clause 25 -- Correctional centres -- arrangements with NSW
Since the formation of the ACT people sentenced to imprisonment in the Territory
have been imprisoned in NSW. Part 4.3 of the Crimes (Sentence Administration)
Act 2005 authorises that practice to continue.
Clause 25 enables the ACT Government to make arrangements with the NSW
Government to provide relevant services to ACT prisoners and reports about ACT
prisoners. Of particular relevance will be reports that inform parole decisions made by
the Sentence Administration Board.
Part 3.4 Administration -- special provisions
Clause 26 -- Declaration of emergency
Clause 26 authorises the chief executive to declare an emergency at a correctional
centre on the basis of a threat to the order or security of a facility, or the safety of
anyone at the centre or elsewhere.
A declaration of emergency triggers the emergency powers in clause 27, discussed
below.
Clause 26(2) limits each declaration of emergency to a span of three days. However,
the chief executive may make any number of subsequent emergency declarations
under 26(3). The effect of these counter-posed provisions is to ensure that the chief
executive makes a decision to declare an emergency at least every three days, if a
threatening situation lasts longer than three days. The requirement to make regular
decisions ensures that the any extended use of emergency powers remain reasonably
justified.
Another period for (2) may be prescribed by regulation. A regulation must be
presented to the Legislative Assembly within six sitting days and the Assembly has
authority to disallow the regulation.
Clauses 26(4) and (5) stipulates that a notice of the declaration must be prepared and
notified under the Legislation Act 2001. The notification does not have to be made
immediately, but must be made within 48 hours. The time of notification does not
prevent the exercise of the emergency powers. Once the chief executive decides to
declare an emergency the powers may be exercised.
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Clause 27 -- Emergency powers
Clause 27 sets out what emergency powers can be exercised following the declaration
of an emergency. As discussed in clause 26 above, the chief executive may exercise
the powers once a declaration is made without having to wait for the notification of
the instrument.
The powers that may be exercised further restrict the liberty and rights to
communicate of detainees. Consequently, they can only be exercised if an emergency
is declared and the action taken is necessary and reasonable.
Clause 27(1)(a) authorises the chief executive to modify or cease any work or activity
at the facility. The Bill's dictionary uses the definition of `activity' in the Crimes
(Sentence Administration) Act 2005, which includes education, counselling, and
personal development programs.
Clause 27(1)(b) authorises the chief executive to control access to, or from, the
correction facility to the ultimate degree. Likewise, the chief executive can further
control movement within the centre to the ultimate degree. The exercise of this power
will further restrict the liberty of detainees. The power will only be compliant with the
Human Rights Act 2004 if it is exercised in a proportionate and reasonable manner,
and is least restrictive upon the rights of detainees under the circumstances.
Clause 27(1)(c) authorises the chief executive to control communications to the
ultimate degree between detainees and anyone else. Anyone else includes other
detainees. The exercise of this power will further restrict the detainees freedom of
expression and impact upon the right to be treated humanely while detained. The
power will only be compliant with the Human Rights Act 2004 if it is exercised in a
proportionate and reasonable manner, and is least restrictive upon the rights of
detainees under the circumstances.
During circumstances of an emergency the power in clause 27(1)(d) enables the chief
executive to delegate powers under the Act to police and other public servants. This
power contemplates circumstances where an emergency causes an issue in relation to
staffing and security of the prison, for example during an epidemic or natural disaster.
Clause 27(2) ensures that the exercise of emergency powers are proportionate and
rationally connected to the task of maintaining order, security and safety.
Clause 28 -- Arrangements with police
Clause 28 empowers the chief executive to make arrangements with police to
facilitate the function of the Crimes (Sentencing) Act 2005, the Crimes (Sentence
Administration) Act 2005 and this Bill.
Examples of arrangements include transport protocols and police assistance during an
emergency at a corrections facility.
Clause 28(3) enables police assisting the chief executive to exercise any power set out
in the Act. However, the powers must be exercised in accordance with any directions
given by the chief executive, or relevant delegate.
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Chapter 4 -- Detention in police and court cells
Clause 29 -- Definitions
The ACT currently has only two courts. The definition of court cells is intended to
cover any cell at a court. The definition is intended to cover any future courts.
The definition of police cell is intended to cover any cell at any police station in the
jurisdiction of the ACT Government.
Clause 30 -- Detention in police cells
Clause 30 authorises detention in police cells for custodial purposes. The clause
contemplates those people who are detained by police in a cell but have not
undergone an admissions process under chapter 9 of this Bill.
Clause 30(2) sets a maximum time limit of 36 continuous hours that a person can be
detained in a police cell before an admissions process under chapter 9 must be
conducted. The limit of 36 hours also corresponds to the maximum time between
conventional hearing times for bail decisions under the Bail Act 1992.
Clause 30(3) facilitates the transfer of a person who is in lawful police custody to the
chief executive.
Clause 30(4) authorises the chief executive to take custody of the person and conduct
an admissions process under chapter 8 of the Bill. 30(4) also enables the person to be
detained at a corrections facility, enables police access to the person and enables the
person to be returned to the custody of the police as needed.
Clause 30(5) contemplates the law authorising police custody and consequently the
fact that the chief executive has custody does not oust any police obligations or duties
under the law that initiated the detention of the person.
Clause 31 -- Detention in police cells -- search powers
Clause 31 authorises police to conduct searches for custodial purposes. The power is
limited to the context of custody in a police cell. The clause authorises police to
conduct scanning, frisk, ordinary or strip searches in accord with part 9.4 of the Bill.
This clause provides the chief police officer with the same powers and obligations as
a corrections officer directed by the chief executive in part 9.4.
The clause also authorises police to seize property in accord with part 9.5 of the Bill.
This clause provides the chief police officer with the same powers and obligations as
a corrections officer directed by the chief executive in part 9.5.
Clause 32 -- Other police powers not limited
This clause clarifies that the power provided to police to engage in searches for
custodial purposes does not limit any other lawful search power. Police powers to
search for investigative purposes under a warrant or otherwise are not limited or
qualified by the clauses in this chapter.
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Clause 33 -- Detention in court cells
This clause contemplates people who are detained in a court cell but are yet to be
admitted under chapter 8 of this Bill. The clause also contemplates court cells as being
administered by the Executive arm of the ACT Government.
The clause places an obligation upon the chief executive to admit a person under
chapter 8 of this Bill if the person has been detained at a court cell for 36 continuous
hours. This does not apply to people already admitted and are lawfully in a court cell
under the provisions of clause 34.
Because a detainee at a court cell is in the chief executive's custody the effect of the
Bill would apply to those detainees.
Clause 34 -- Detainees accommodated away from correctional centre
Clause 34 remakes a power in the Remand Centre Act 1976 that enabled police and
court cells to be used temporarily to accommodate detainees.
Any decision to exercise this power must set a time when the power ends and must be
notified on the legislation register. For example, a direction may set a time of four
hours, or two days.
It is envisaged that this power would be exercised on rare occasion. Examples for the
exercise of the power are given.
Detainees would only be able to be detained away from a correctional centre for the
purpose of the declaration during the period set out in the declaration.
This clause only applies to detainees who are admitted to a corrections facility,
consequently the 36 hour rule is redundant. However, the full effect of the
foreshadowed Act would apply to the detainees.
Chapter 5 -- Escorting detainees
Clause 35 -- Escorting officer functions
An escort officer is defined in this Bill's dictionary as a corrections officer who is
engaged in duties of escorting a detainee, or a police officer.
Clause 35(1) authorises police and corrections officers to be an escort of any detainee
in the custody of the chief executive, irrespective of the purpose of the escort.
Clause 35(2)(a) and (b) stipulates the escort officer has the authority to escort the
detainee and that the detainee is deemed to be in the custody of the chief executive.
Clause 35(2)(c) clarifies that corrections officers who are doing escort duties are able
to exercise any powers allocated to corrections officers in this Bill and any powers
delegated to the officers by the chief executive under this Bill.
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Clause 36 -- Escorting arrested person to court
This clause addresses the overlap between police and corrections officers when
escorting a person in police custody to a court, or other place, where a judicial or
quasi-judicial entity requires the detainee to attend.
The clause enables police or corrections officers engaged to escort the person to take
the person into custody and bring them to the relevant court or tribunal.
Detainees who are not admitted to a corrections centre under chapter 8 are subject to
the protections in chapter 4, dealing with custody in police and court cells.
Clause 37 -- Custody during proceedings
Clause 37 provides escort officers with authority to uphold the safety and welfare of
the person during judicial or quasi-judicial proceedings. Escort officers are also
empowered to prevent the detainee from obstructing or hindering the proceedings.
These powers are subject to the direction of the court.
Clause 38 -- Executing warrants of imprisonment or remand
This clause enables escort officers to take a person into custody as a consequence of
judicial or quasi-judicial proceedings.
Subsection (2) allows an order or direction of a court to take a person into custody to
be exercised by any officer assigned to escort duties.
Clause 39 -- Other powers not limited
Clause 39 clarifies that this chapter is to be read as extending the law in relation to
escorting detainees. The chapter is not intended limit any other powers applying to
escorts.
Chapter 6 -- Living conditions at correctional centres
Chapter six provides a statutory basis for rules 9 to 26, 37 to 39, 41 and 42 of the
Standard Minimum Rules for the Treatment of Prisoners (1957) dealing with living
conditions.
The intent of chapter six is to provide a set of minimum conditions that must be
afforded to every detainee. Chapter six also draws a line between the minimum
conditions that are regarded as entitlements and conditions that may be considered to
be privileges. The distinction between entitlements and privileges is important to
enable the discipline process to work and to ensure that segregation for reasons other
than discipline are fairly applied.
The first note in chapter six explains that any withdrawal of privileges as a
consequence of disciplinary action does not affect any entitlement set out under
chapter six. Conversely, any condition in chapter six that is not prescribed to be an
entitlement can be regarded as a privilege.
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Clause 40 -- Food and drink
Clause 40(1) requires detainees to be fed properly, have access to drinks and clean
drinking water. Meals should be provided at times consistent with cultural norms.
`Cultural norms' are those standards or patterns that are, "shared and understood, but
tacitly rather than explicitly" [Schein, E. H. Organizational culture and leadership,
(1985)].
Clause 40(2) recognises that food and drink also play an important part of religious or
spiritual occasions. The clause is not prescriptive about what is to be regarded as
practical, or impractical, as the needs and requests for particular food and drink will
be varied. The chief executive must exercise a discretion in deciding whether
provision of particular foods at particular times is practically possible.
Clause 40(3) requires the chief executive to provide a detainee with food and drink
that satisfies a diet prescribed by a doctor. The clause is not absolute in the obligation,
as is may not be logistically possible to meet the provision of all of the specific food
required. For example, because of seasonal reasons, availability etc. The clause
excludes doctors who are appointed to carry out non-therapeutic tasks (see
explanation of clauses 21 and 22).
Clause 40(4) stipulates the items in the clause that are entitlements and not to be
regarded as privileges for the purposes of disciplinary action.
Clause 40(5) enables the chief executive to set out the nutritional standards to be
provided for detainees, provide nutritional advice to detainees and appoint a
nutritionist.
Clause 40(6) stipulates that any food and drink entitlement articulated in the
instruments made under 40(5) become entitlements for the purposes of disciplinary
action.
Clause 41 -- Clothing
Clause 41 requires clothing to be provided to detainees. The clothing must be suitable
for the seasonal conditions. The international standards, such as rule 7 of the Standard
Minimum Rules for the Treatment of Prisoners (1957), forbid clothing that would
degrade or humiliate detainees. For example in clothes with archetypal arrows or
lines.
Clause 41(2) obliges the chief executive to ensure the clothing is clean and hygienic.
Clause 41(3) stipulates that all of the matters in the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
Clause 42 -- Personal hygiene
Clause 42 stipulates that toilet, washing and showering facilities must be provided at
correctional centres. These facilities need to be kept in a state of cleanliness, and
provide privacy, as would be expected in the context of Australia's cultural norms.
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Clause 42(2) stipulates that all of the matters in the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
Clause 43 -- Sleeping areas
Clause 43 obliges the chief executive to provide suitable beds and bedcovers. Bedding
must be clean, hygienic and provide reasonable comfort and privacy.
Clause 43(2) stipulates that all of the matters in the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
Clause 44 -- Treatment of convicted and non-convicted detainees
It is a human rights principle that non-convicted detainees should not be
accommodated with convicted detainees. However, an exception to this principle lies
where some non-convicted individuals may be vulnerable to another non-convicted
individual.
The clause gives an example of an exception to the principle of separating convicted
and non-convicted detainees.
The clause is not to be interpreted as applying to people who have ever been
convicted. The clause applies to people who are serving imprisonment as a
consequence of a particular conviction or convictions.
This clause also obliges the chief executive to make a policy or operating procedure to
give effect to differential treatment of non-convicted detainees. The operating
procedure must address the United Nations Standard Minimum Rules for the
Treatment of Prisoners (1957) rules 87, 89, 90 and 91.
These rules enable non-convicted people to be able to:
· procure food at their own expense;
· be offered the opportunity to work without obligation to work;
· procure books, writing materials, newspapers etc at their own expense;
· procure private therapeutic treatment from a doctor or dentist of their choice at
their own expense.
Clause 45 -- Access to open air and exercise
Clause 45 prescribes a statutory minimum of an hour's access to open air per day for
each detainee, and an hour's access to exercise.
Access to open air and exercise may be combined in the same hour for each detainee.
The entitlement is not absolute, as there may be practical reasons why the entitlement
cannot be implemented every day. For example a state of emergency, or a natural
disaster etc.
Clause 45(3) stipulates that all of the matters in the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
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Clause 46 -- Communication with family and others
Clause 46 places an obligation upon the chief executive to be proactive in providing
opportunities for detainees to maintain contact with the community. As discussed
earlier, most prisoners will return to the community. Positive changes in behaviour
will be greatly influenced by relationships with family and close associates.
Maintaining these relationships during detention is an important factor in successful
rehabilitation and release of prisoners. The use of the term `associate' in no way
authorises criminal association.
Clause 46(2) follows human rights jurisprudence that requires consideration of the
non-convicted status of a detainee when a corrections authority makes a decision that
affects the detainee's opportunity to communicate. This does not mean that the
non-convicted status of the detainee outweighs all other considerations.
46(3) and (4) are a prohibition on constructive incommunicado. Incommunicado is the
State unlawfully preventing a person from communicating with all facets of civil
society: institutions and family.
(5) ensures that any discipline process does not create an authority to impose
constructive incommunicado upon a detainee.
(6) clarifies that the prohibition on incommunicado does not prevent the chief
executive from preventing communication, providing it is lawful, reasonable and
proportionate.
Clause 47 -- Telephone calls
Clause 47(1) requires the chief executive to provide telephone infrastructure to enable
detainees to make calls, and receive calls.
Clause 47(2) sets out the minimum calls each week that a detainee must be allowed to
make.
A family member includes the detainee's partner, children, parents, grandparents,
siblings, guardian or carer. For children, parents, and siblings this includes
non-biological relationships, such as a step-parent.
Clause 47(3) clarifies that the minimum calls are not the only calls a detainee is
entitled to make or receive. Further calls can be made, consistent with the principle set
out on clause 46 above.
The chief executive has the discretion to determine what constitutes a necessary
phone call and an unnecessary phone call.
Clause 47(4) stipulates that detainees must pay for any phone call they make unless
there are good reasons why they cannot pay for the call. Clause 83 enables the chief
executive to establish a bank account in trust for detainees. Detainees' may earn
nominal amounts for tasks completed in detention, and other income may be
deposited into the account.
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Payments for phone calls and mail will be met by this account.
Clause 47(5) stipulates that the matters in (2) and (3) of the clause are entitlements
and not to be regarded as privileges for the purposes of disciplinary action.
Clause 47(6) empowers the chief executive to deny or limit a detainee's phone calls if
the chief executive suspects the detainee will engage in any of the behaviour listed in
(a) to (d).
An example of (a) is the use of a phone call to communicate a threat to other detainees
via third parties. An example of (b) is a phone call to a third party, or a victim
themself, to taunt or harass the victim. An example of (c) is a phone call that would
pre-empt, prejudice or impair the investigation of a complaint or the conduct of a
disciplinary process. An example of (d) is a phone call to a journalist, or other
individuals, to goad or provoke community feeling by glorifying offending behaviour
such as rape, violence, paedophilia etc.
Clause 47(7) clarifies that phone calls are subject to security monitoring set out in part
9.3 and to any operating procedures that apply to phone calls.
Clause 47(8) authorises the chief executive to make operating procedures about what
times during the day phone calls may be made; the maximum time allowed for phone
calls; and what charges should be applied for phone calls.
Consistent with Australian common law and Human Rights jurisprudence, any
decision made to make an operating procedure or impose an operating procedure must
be reasonable and proportionate to its lawful purpose.
Clause 48 -- Mail
Clause 48(1) enables detainees to send and receive as much mail as they wish.
However, this should not be regarded as an absolute entitlement if the amount of mail
exceeds the ability of the correctional centre to properly process and move the mail.
Clause 48(2) entitles a detainee to write to nominated family members and to
accredited people. A family member is both singular and plural by the effect of
section 145(b) of the Legislation Act 2001, which interprets words in Acts as meaning
both singular and plural unless explicitly stated otherwise.
A family member includes the detainee's partner, children, parents, grandparents,
siblings, guardian or carer. For children, parents, and siblings this includes
non-biological relationships, such as a step-parent.
Clause 48(3) stipulates that detainees must pay for any mail they post unless there are
good reasons why they cannot pay for the postage. Clause 68 enables the chief
executive to establish bank accounts in trust for detainees. Detainees may earn
nominal amounts for tasks completed in detention, and other income may be
deposited into the account.
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Clause 48(4) stipulates that the matters in (2) of the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
Clause 48(5) empowers the chief executive to deny or limit a detainee's mail if the
chief executive suspects the detainee will engage in any of the behaviour listed in (a)
to (d).
An example of (a) is the use of mail to communicate a threat to other detainees via
third parties. An example of (b) is mail to a third party, or a victim themself, to taunt
or harass the victim. An example of (c) is mail that would pre-empt, prejudice or
impair the investigation of a complaint or the conduct of a disciplinary process. An
example of (d) is mail to a journalist, or other individuals, to goad or provoke
community feeling by glorifying offending behaviour such as rape, violence,
paedophilia etc.
Clause 48(6) clarifies that mail is subject to security monitoring set out in part 9.3 and
to any operating procedures that apply to mail.
Clause 48(7) authorises the chief executive to make operating procedures about how
mail is sent or received; the provision of material for letters etc; and what charges
should be applied for mail.
Consistent with Australian common law and Human Rights jurisprudence, any
decision made to make an operating procedure or impose an operating procedure must
be reasonable and proportionate to its lawful purpose.
Clause 49 -- Visits by family members etc
As discussed earlier, the majority of prisoners will return to the community. Positive
changes in behaviour will be greatly influenced by relationships with family and
friends. Maintaining these relationships during detention is an important factor in
successful rehabilitation and release of prisoners.
Clause 49(1) obliges the chief executive to provide suitable facilities at any
correctional centre for detainees to receive visits.
Clause 49(2) provides detainees with an entitlement to a minimum of a 30 minute
visit by a family member every week. A week being the standard week of seven
consecutive days. Family member can be singular and plural by the effect of section
145(b) of the Legislation Act 2001, which interprets words in Acts as meaning both
singular and plural unless explicitly stated otherwise.
A family member includes the detainee's partner, children, parents, grandparents,
siblings, guardian or carer. For children, parents, and siblings this includes
non-biological relationships, such as a step-parent.
Clause 49(3) stipulates that the matters in (2) of the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
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Clause 49(4) empowers the chief executive to deny or limit a detainee's visits if the
chief executive suspects the detainee will engage in any of the behaviour listed in (a)
to (d).
An example of (a) is the use of visits to communicate a threat to other detainees via
third parties. An example of (b) is a visit by a third party to taunt or harass a victim.
An example of (c) is a visit that would pre-empt, prejudice or impair the investigation
of a complaint or the conduct of a disciplinary process. An example of (d) is a visit by
a journalist, or other individual, with the intent of goading or provoking community
feeling by glorifying offending behaviour such as rape, violence, paedophilia etc.
Visits are conditional on visitors abiding by the correctional centre's laws and
procedures. Consequently, clause 49(5) stipulates that visits are subject to visiting
conditions set out in part 9.8.
Clause 50 -- Contact with accredited people
An accredited person is a an official involved in the administration of the person's
sentence, a detainee's lawyer, an official visitor, the human rights commissioner, the
ombudsman, or any other person prescribed by regulation.
At common law and in human rights jurisprudence detainees have a right to access
their lawyer and various relevant office holders.
Clause 50(1) enables accredited people to phone, mail or visit detainees. No minimum
or maximum number of visits or period of time for each visit is set. However, this is
not an absolute entitlement as the visiting conditions in part 9.8 apply.
Clause 50(2) stipulates that the matters in (1) of the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
Clause 50(3) empowers the chief executive to deny or limit a detainee's visits if the
chief executive suspects the detainee will engage in any of the behaviour listed in (a)
and (b).
An example of (a) is the use of visits to communicate a threat to other detainees via
third parties. An example of (c) is a visit that would pre-empt, prejudice or impair the
investigation of a complaint or the conduct of a disciplinary process.
Visits are conditional on visitors abiding by the correctional centre's laws and
procedures. Consequently, clause 50(4) stipulates that visits are subject to visiting
conditions set out in part 9.8.
Clause 51 -- News and educational services
Detainees are not exiles to be held in isolation from the community. A Human Rights
Approach to Prison Management, states that:
Prisoners should also be able to keep up to date with events which are taking place in
civil society, both in the communities from which they have come and in the wider
world. This is a way of reducing the abnormality of the prison experience and also of
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making sure that the prisoner does not become completely detached from the
community to which he or she will return on release. For these reasons prisoners should
have access to books, newspapers, magazines, radio and television wherever possible.
[2002, page 97]
Clause 51(1) enables detainees access to media available in the general community
and to a library.
Rule 77 of the Standard Minimum Rules for the Treatment of Prisoners (1957) states:
(1) Provision shall be made for the further education of all prisoners capable of
profiting thereby, including religious instruction in the countries where this is possible.
The education of illiterates and young prisoners shall be compulsory and special
attention shall be paid to it by the administration.
(2) So far as practicable, the education of prisoners shall be integrated with the
educational system of the country so that after their release they may continue their
education without difficulty.
Likewise, A Human Rights Approach to Prison Management notes:
Education is not to be regarded as an optional extra to the list of activities for prisoners.
Instead it is central to the whole concept of using the period in prison as an opportunity
to help prisoners to re-order their lives in a positive manner. In the first place it should
be focussed on basic needs so that everyone who is in prison for any length of time can
be taught to read, write and make basic arithmetical calculations which will help them
to survive in the modern world. [2002, page 91]
Clause 51(2) provides for academic, vocational or cultural education or training of
detainees. The chief executive may approve any educational or training program
provided the program provides the detainee with relevant skills, promotes
rehabilitation or promotes the detainee's personal development.
Academic education contemplates certificates or degrees available at secondary or
tertiary institutions. Vocational education is covered by the Vocational Education and
Training Act 2003, which includes traineeships, apprenticeships, and other work
related training. Cultural education includes learning an art or craft, a musical
instrument, written art forms, textile production etc.
Clause 51(3) stipulates that approved education or training, referred to in (2) of the
clause, are entitlements and not to be regarded as privileges for the purposes of
disciplinary action.
Clause 52 -- Health care
Clause 52 is essentially a codification of the ACT's current practice and standards.
Clause 52 is also an expression of international standards of health care in prisons and
remand centres.
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The crux of the principle is that detainees should receive health care equivalent to the
community standard. The fact of detention should not be an impediment to health care
consistent with Australian norms.
Clause 52(1) provides an entitlement of health care and health care prevention to a
degree equal to that provided for the Territory community.
Clause 52(2)(a) to (c) prescribes the duties the chief executive must exercise to meet
the standard of health care. Clause 52(2)(d) and (e) prescribes the duties the chief
executive must exercise, as far as practicable, to meet the standard of health care.
Clause 52(2)(e) uses the term rehabilitation in the medical sense. The subclause
contemplates medical rehabilitation after an accident or other medical trauma. For
example after a burn injury or a stroke.
Clause 52(3) stipulates the matters in the clause that are entitlements and not to be
regarded as privileges for the purposes of disciplinary action.
Clause 52(4) authorises the Executive to make regulations to provide for the matters
listed in (a) to (e). Subclause (d) contemplates medical rehabilitation after an accident
or other medical trauma. For example after a burn injury or a stroke.
Clause 52(5) stipulates that any regulations made under 52(4) that include
entitlements are to be regarded as an entitlements for the purposes of disciplinary
action.
Clause 53 -- Transfers to health facilities
Clause 53 sets out a way of providing health care in an ACT Health facility while also
accounting for the need to continue the secure custody of a detainee.
Clause 53 provides the chief executive with the power to transfer a detainee to a
health facility upon the advice of an appointed therapeutic doctor.
In transferring a detainee, corrections officers or police officers may be assigned to
escort the detainee to the facility.
A detainee may only be discharged from the health facility if the health care provider
believes the person is fit enough to be discharged, or circumstances warrant the chief
executive directing the person be removed.
Clause 53(5) ensures that a detainee is returned to the relevant correctional centre
after discharge. This clause clarifies that there is no power to discharge without
ensuring that the detainee is returned to the correctional centre.
Clause 53(6) stipulates that all of the matters in the clause are entitlements and not to
be regarded as privileges for the purposes of disciplinary action.
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Clause 54 -- Religious, spiritual and cultural needs
Section 14 of the Human Rights Act 2004 states:
Freedom of thought, conscience, religion and belief
(1) Everyone has the right to freedom of thought, conscience and religion. This right
includes--
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance,
practice and teaching, either individually or as part of a community and whether in
public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to have or
adopt a religion or belief in worship, observance, practice or teaching.
Imprisonment or other forms of detention do not exclude this right.
Clause 54 requires the chief executive to provide for detainees to practice their
religion or spiritual beliefs.
Clause 54(2) stipulates that where practical, detainees must have access to priests,
lamas, rabbis, imams, elders or other people who lead spiritual or religious activity.
Services, texts and relevant artifacts should also be provided to detainees, where
practical. The practicality of providing for religious worship or exercise of spirituality
will depend upon the logistics required to meet the needs of the detainee, or detainees.
Clause 54(3) empowers the chief executive to deny or limit a detainee's practice, or
request to practice, if the chief executive suspects the detainee will engage in any of
the behaviour listed in (a) to (d).
An example of (a) is the use of religious services to communicate a threat to other
detainee. Or the use of religious books or artefacts to hide contraband. An example of
(b) is behaviour at a religious service to taunt or harass a victim. An example of (c) is
behaviour or communication at a religious service that would pre-empt, prejudice or
impair the investigation of a complaint or the conduct of a disciplinary process. An
example of (d) is attendance at a religious service with the intent of goading or
provoking community feeling, for example making anti-semitic comments at a jewish
service.
Clause 54(4) upholds detainees' right not to participate in any religious, spiritual or
cultural practices.
Clause 54(5) stipulates the matters in the clause that are entitlements and not to be
regarded as privileges for the purposes of disciplinary action.
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Clause 54(6) uses a reference to a commonwealth definition from the Marriage
Act 1961. In the Marriage Act 1961:
minister of religion means:
(a) a person recognized by a religious body or a religious organization as having
authority to solemnize marriages in accordance with the rites or customs of the body or
organization; or
(b) in relation to a religious body or a religious organization in respect of which
paragraph (a) is not applicable, a person nominated by:
(i) the head, or the governing authority, in a State or Territory, of that body or
organization; or
(ii) such other person or authority acting on behalf of that body or organization as
is prescribed;
to be an authorized celebrant for the purposes of this Act.
Chapter 7 -- Inspection of correctional centres
A Human Rights Approach to Prison Management notes that:
All prisons are places where men and women are detained against their will. The
potential for abuse is always present. Therefore they must be institutions which are
managed in a way which is fair and just. All institutions which are managed by or on
behalf of the state should be subject to public scrutiny. This is especially important in
the case of prisons because of their coercive nature. [2002, at page 111]
Rule 55 of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (1957) states that:
There shall be a regular inspection of penal institutions and services by qualified and
experienced inspectors appointed by a competent authority. Their task shall be in
particular to ensure that these institutions are administered in accordance with existing
laws and regulations and with a view to bringing about the objectives of penal and
correctional services.
Since the Remand Centres Act 1976 the ACT has had an official visitor that inspects
the Territory's remand centres to ensure the centres are run in accordance with the law
and to hear any complaints made by remandees.
The provisions in chapter 7 continue this function of the official visitor while also
expanding the official visitor's responsibilities to include all detainees. Chapter 7 also
remakes traditional powers of inspection by a range of statutory and non-statutory
office holders.
Clause 55 -- Independent inspections
Clause 55 remakes the power in the Remand Centres Act 1976 to enable judges,
magistrates and Legislative Assembly members to inspect corrections centres. The
clause adds the Ombudsman and the Human Rights Commissioner as an officer who
may inspect corrections centres. Staff of the Ombudsman and the Human Rights
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Commissioner are included in the people who may inspect a corrections centre by the
effect of section 184A of the Legislation Act 2001.
Clause 55(2) extends the power to places where detainees are engaged in work or
other activities.
Clause 56 -- Official visitors -- appointment
Clause 56 requires the Minister to appoint at least one official visitor. More than one
official visitor may be appointed.
The Minister must appoint a person who has suitable qualifications or experience.
Clause 56(3) excludes public servants from being eligible to be an official visitor. A
public servant is obliged to follow the direction of a relevant chief executive and their
Minister. Appointing a public servant would create a conflict of interest between the
individuals obligations to their Minister, and their obligation to fulfil the functions as
an independent officer under clause 57. This provision is consistent with the
international instruments as set out in A Human Rights Approach to Prison
Management, 2002, pp 111-113.
Because the individual appointed will not be a public servant, the appointment will be
subject to Part 19.3 of the Legislation Act 2001.
The term of an official visitor's appointment is limited to three years under clause
56(4). This does not prevent the same person being appointed for a subsequent term.
Conditions of remuneration and any other terms of appointment are to be agreed
between the Minister and are subject to determinations made by the remuneration
tribunal.
Clause 57 -- Official visitors -- functions
Clause 57(1) lists the functions of an official visitor. The official visitor is authorised
to visit correctional centres and any place detainees are directed to work outside a
centre.
Official visitors also receive and investigate complaints under clauses 58 and 59.
Clause 57(1)(b) enables other laws to assign functions to the official visitor.
Clause 57(2) stipulates that the official visitor must make the minimum number of
visits set out in the conditions of the official visitor's appointment. The official visitor
may make visits at reasonable times. Examples are given of reasonableness. It is
expected that the chief executive will make every effort to enable the official visitor at
any time the visitor requests. However, in some circumstances a visit will create a risk
to the official visitor.
Clause 57(3) provides the official visitor with the power to report any concerns about
a correctional centre directly to the Minister. The report must be in writing.
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Clause 57(4) obliges corrections officers to cooperate with the official visitor's
endeavours to carry out the visitor's duties.
Clause 58 -- Complaints to official visitors
Clause 58 enables detainees to make complaints to the official visitor. Complaints
must be directed to issues about: the detainee's detention; the operation of the
correctional centre; or conditions of the centre, work, or activities required of the
detainee.
Clause 58(2) obliges the chief executive to tell the official visitor a detainee wishes to
see the visitor without any undue delay.
Clause 58(3) ensures that the detainee is not obliged to disclose the nature of the
complaint to the chief executive.
Clause 59 -- Investigation etc by official visitors
Clause 59 obliges official visitors to investigate complaints. Frivolous or vexatious
complaints may be set aside by the visitor.
Clause 59(2) gives the official visitor the discretion to make a recommendation
directly to the chief executive, or report to the Minister about the complaint.
As a means of accounting for the official visitors investigations and to inform the
Minister of the condition of correctional centres, clauses 59(3) and 59(4) require the
official visitor to report quarterly to the Minister.
Clause 60 -- Official visitors -- end of appointment
Clause 60(1) gives the Minister the power to end the appointment of an official visitor
if the official visitor does anything listed in (a) to (f), or under (g) if the visitor has an
incapacity that precludes the exercise of their duties.
If the official visitor becomes a public servant, the appointment is automatically
ceased.
By section 210 of the Legislation Act 2001, the official visitor may also resign their
appointment.
Clause 61 -- Relationship with other inspection laws
This clause clarifies that any existing Act that authorises inspections for the public
benefit or to uphold the law still applies to a corrections facility. This Bill and any Act
authorising inspection must be read to be consistent with the inspection law unless the
Acts set out a contrary intention.
The clause qualifies any open-ended inspection power by enabling the chief executive
to make arrangements for the safety of inspectors carrying out their duty. The clause
also obliges any inspectors or police to abide by any direction given by the chief
executive that is relevant to safety and security.
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Chapter 8 -- Admission to correctional centres
The Alexander Maconochie Centre Functional Brief notes:
The early hours and days following reception and admission are particularly vulnerable
times for new arrivals. Accordingly, the emphasis during prisoner admission and
assessment needs to be on one-on-one interviews and the timely and comprehensive
sharing of information to manage risk and to give effect to duty of care considerations.
[2005, page 44]
Understanding the physical and mental health of a detainee is essential for the first
difficult weeks of detention and to ensure the detainee remains healthy until the
detention ends.
Admission is also a time of risk for getting basic facts wrong and for the start of a
prisoner's rehabilitation to be delayed. Likewise, admission poses the greatest risk for
the smuggling of drugs and other contraband.
Chapter 8 sets out what needs to be done, and what powers may be exercised, to admit
a detainee to a corrections centre.
Clause 62 -- Meaning of admission to correctional centres
Clause 62 provides a short-hand definition of admission to clarify that admission also
means the first session of periodic detention to be served by an offender, but not every
subsequent session the offender is required to attend.
Clause 63 -- Authority for detention
Clause 63 stipulates that there must be a relevant warrant for imprisonment, remand
or other form of detention. Detention other than remand or imprisonment may not
require a warrant, but some form of discernible authority must be provided.
Clause 63(2) requires the authority to detain a person to be given to the centre's
administrator before the person is admitted.
Clause 63(3) clarifies that a person may be detained even if there is a defect in the
warrant or relevant instrument, provided that the authority for detention is
demonstrable.
Chapter 3 of the Crimes (Sentence Administration) Act 2005 sets out the relationship
between committal orders, remand orders, and their respective warrants. In essence,
the order to commit an offender or remand a person remains valid despite there being
a defect in the warrant.
Clause 64 -- Identification of detainees
To ensure the identity of a detainee is confirmed and maintained throughout detention,
the chief executive may take the things mentioned in 64(1)(a) to (g).
These things must be destroyed if the person is acquitted (apart from special verdicts
relating to mental states of mind) or the offence is no longer prosecuted.
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Clause 64(3) clarifies that things taken of, or from, the detainees body to identify the
detainee should not be destroyed if the person is acquitted of one offence but
convicted of another or a prosecution for another offence remains on foot.
Clause 64(4) stipulates that blood samples may only be taken by a health professional
appointed for non-therapeutic tasks. This provision does not prevent blood samples
being taken by authorised officers under the Crimes (Forensic Procedures) Act 2000.
Clause 65 -- Information about entitlements and obligations
Clause 65 ensures that the chief executive provides each detainee with the information
listed in 65(1)(a) to (g). The information provided to each detainee is not limited to
this list. The examples of other information that might be provided are given.
Clause 65(2) enables the chief executive to use plain language when providing the
information.
Subclauses (3) and (4) obliges the chief executive to use interpreter services if the
person cannot speak English, has trouble with English, or uses another form of
communication such as AUSLAN.
Clause 65(5) requires the chief executive to enable detainees to access copies of the
Act, its regulations, corrections policies, and operating procedures. This clause does
not oblige the chief executive to make, or give, each and every detainee a copy of
these documents. Nor does it prevent the chief executive from giving a copy of a
document to a detainee upon request.
Clause 65(6) obliges the chief executive to contact diplomatic or consular
representatives upon the request of a foreign national being admitted to a correctional
centre.
Clause 66 -- Initial assessment
Clause 66 directs the chief executive to assess each detainee admitted to a centre for
any risks and needs associated with the detainee's health, safety or security.
Clause 66(b) requires the chief executive to act upon any immediate risks or needs
identified.
Any ongoing risks and needs must be addressed in the case management plan.
Clause 67 -- Health assessments
Principle 24 of the United Nation's Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment (1988) states:
A proper medical examination shall be offered to a detained or imprisoned person as
promptly as possible after [their] admission to the place of detention or imprisonment,
and thereafter medical care and treatment shall be provided whenever necessary. This
care and treatment shall be provided free of charge.
Clause 67(1) creates a statutory requirement for health assessments to occur within
24 hours of a detainee's admission into a corrections centre.
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Clause 67(2) enables an initial assessment by a nurse and subsequent review by a
medical officer, who must be a doctor appointed under clause 21. Alternatively, the
assessment may be conducted by the doctor in the first instance.
Clause 67(3) ensures that an assessment of the risk of self harm is inherently part of
every initial assessment.
Clause 68 -- Alcohol and drug tests on admission
Alexander Maconochie Centre Functional Brief states that:
Illicit drugs pose one of the most serious problems in prisons. Drug use can cause death
or serious illness (through overdosing), spread blood borne viruses and diseases such as
AIDS/HIV and Hepatitis B and C (through shared use of dirty needles), react badly
with prescribed drugs, cause violent behaviour, jeopardise rehabilitation, and impact
negatively on families. [2005, page 49]
A market for illicit drugs in a prison or remand centre also creates a greater risk for
the corruption of people who work at the facility.
Clause 68 provides an explicit authority for the chief executive to direct detainees to
provide samples for drug testing.
Division 9.6.2 sets out the procedure for taking samples.
Clause 69 -- Strip search on admission
Preventing contraband finding its way into a prison, particularly weapons and drugs,
is an important method of keeping every detainee and employee safe.
Part 9.4 empowers the chief executive officer to direct searches and sets out how
searches must be carried out. Clause 69 authorises the chief executive to direct a strip
search upon admission without the need to decide if a search is warranted by any
evidence of a detainee concealing something. Clause 69 intends to enable a strip
search to occur as a routine part of the admissions process.
Part 9.5 enables any contraband, or suspected contraband, to be seized by the chief
executive.
Clause 70 -- Property of detainees
Clause 70 gives the chief executive the discretion to allow detainees' property to be
brought into a corrections facility.
70(2) allows the chief executive to qualify the nature and amount of property, where it
may be kept in the facility and how it may be used. For example, the chief executive
may allow a hand-held computer game to be kept in a detainee's accommodation but
may not allow it to be used during a work shift.
Any allowed property taken into the centre by a detainee must be recorded in the
register set out in chapter 9.
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Clause 70(4) authorises a policy or operating procedure to be made that sets out the
detail of the issues mentioned in (a) to (e). An operating procedure or policy would
not supersede the provisions of this Bill, nor supersede any civil law property rights
not affected by this Bill.
Clause 71 -- Security classification
As part of the checklist for admission, clause 71 requires a detainee admitted to the
corrections centre to be classified for security. Clause 79 below sets out the matters
that must be considered when classifying a detainee.
The detainee's security classification will affect the placement of the person in the
prison.
Clause 72 -- Case management plan
The overwhelming majority of prisoners will finish their sentence and return to the
broader community. Preparation for release and management of the offender's health
and time during detention needs to start as soon as possible after admission.
As part of the checklist for admission, clause 72 requires the chief executive to
prepare a case management plan for each detainee. Clause 77, below, governs what
must be included in the plan.
Clause 73 -- Entries in register of detainees
Consistent with the identification of detainees and the correct legal disposition
associated with each detainee, clause 73 requires the chief executive to record the
details of each detainee in the register.
Chapter 9, clause 75, establishes the register and is discussed below.
Chapter 9 -- Management and security
The prime operational task of a correctional facility is to provide secure custody of
people committed to detention. The management of that custody must be humane and
attend to the common human needs of detainees.
Alexander Maconochie Centre Functional Brief, states that:
The Operating Model of the Centre will be located on a continuum from indirect
supervision to direct supervision. The major features of the former are a heavy reliance
on distant electronic surveillance and the confinement of officers to secure stations. In
contrast, the direct supervision model of the AMC is based on extensive staff (as role
models) and prisoner contact, the development of positive relationships with attendant
improved surveillance and security and institutional "climate". [2005, page 9]
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Part 9.1 -- Management and Security -- general
Clause 74 -- Compliance with chief executive's directions
Clause 74 is an overarching power for the chief executive to give directions to a
detainee. The directions can be oral or in writing. The power to give directions can be
delegated, as discussed in clause 16 above.
Clause 74 -- Register of detainees
A register of detainees is a means to ensure the lawfulness of a person's detention.
The register envisaged by this Bill also enables continuity of management by
providing a record of the person's identity, relevant health matters, case management
plans, and any specific needs of the detainee. The records required to be kept are set
out in 74(2).
Clause 75(3) stipulates that anyone authorised to inspect a correctional centre under
chapter 7, discussed above, may also inspect the register.
Clause 75 does not prescribe that the register must be a hard-copy book. The register
may be electronic.
Clause 76 -- Health reports
The Minister and department assigned the foreshadowed Act by the government will
ultimately responsible for the care of detainees.
Over many years coroners and courts have expressed the need for corrections
agencies to know about the health of detainees in order to avert a crises, or to respond
to one. For example: Anthony KENNEDY, Victoria, 2002; Dylan Robert GREEN,
WA, 2002; Hendrik Jan GROOTHEDDE, WA, 2003; Damien George GARLETT,
WA, 2003; Craig Mark ALLEN, SA, 2000; Margaret LINDSAY, SA, 2001; Darryl
Kym WALKER, SA, 2003; Bruce LIM-WARD, NSW, 2003; Cedric DIXON, NSW,
2002; Mario NAVASCUES, NSW, 2003; Edward James RUSSELL, NSW, 1999;
Gregory Francis McCARTHY, NSW, 2002; Marcus Patrick McTAGGART, NSW,
2001; James BRINDLE, NSW, 1997.
Clause 76 provides an explicit authority for the chief executive administering the
foreshadowed Act to require health information from other chief executives
mentioned in 76(8).
Compliance with a request for information is an obligation, not a discretion. The
government intends this clause to be a lawful authority for health agencies to provide
health records about detainees without having to decide compliance with the privacy
principles in the Health Records (Privacy and Access) Act 1997. Section 6 of the
Health Records (Privacy and Access) Act 1997 enables application of a Territory law
as lawful authority not to comply with the privacy principles.
Clause 76 does not oust any existing or future obligations upon the chief executive, or
corrections officers, to treat any information about detainees as confidential.
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Section 9(m) of the Public Sector Management Act 1994 obliges public servants:
(m) not disclose, without lawful authority--
(i) any information acquired by him or her as a consequence
of his or her employment; or
(ii) any information acquired by him or her from any
document to which he or she has access as a consequence
of his or her employment;
Any corrections officers who are authorised access to health information of detainees
as part of their duties would be obliged to keep that information confidential outside
of their duties.
Clause 76(4) obliges the chief executive to organise the doctor appointed under
clause 21 to assess the reports and prepare a health schedule for each detainee's case
management plan.
The health schedule is a summary of the detainee's medical conditions, medical risks,
potential symptoms, and treatment for the detainee. The health schedule will be able
to be accessed in a medical crisis to facilitate quick assessment of the situation and
organise any necessary assistance or treatment for a detainee.
Clause 76(6) enables an operating procedure to be made to set out the detail to be
included in a health schedule. The procedure would be able to also specify who may
access the schedule.
Clause 76(7) is an obligation upon the chief executive ensure access to medical
information is only available to those who have authority to access the information.
Clause 77 -- Case management plans
The rehabilitation of offenders sentenced to imprisonment needs to start at the earliest
point in their sentence. The government intends that case management plans for
prisoners will be an important part of a prisoner's rehabilitation and preparation for
release.
The plans envisaged incorporate issues relevant to the management of the prisoner as
well as long-term rehabilitation goals.
Clause 77(1) requires the chief executive to prepare case management plans for
prisoners, but allows a discretion for remandees. In the case of remandees, the chief
executive may develop some elements of a plan, but not others.
Clause 77(2) sets out what must be in a case management plan. 77(2)(d) contemplates
the various programs and courses that address offending behaviour. If an offender
genuinely deals with their offending behaviour, the record will contribute to the
offender's preparation for parole inquiries -- if they are eligible for parole.
Clause 77(3) sets out what can be included in a case management plan. 77(3)(f)
ensures that strategies can be put in place for detainees who have a disability, or
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impairment, of any nature. The provision is particularly important for assisting
offenders in this category to prepare for their release, including preparation for parole
inquiries.
Clause 77(3)(g) provides explicitly for a case management plan to assist a prisoner to
prepare for a parole inquiry and to ensure the prisoner is aware of their earliest release
date.
Clause 77(3)(h) authorises the Executive to add further matters to the case
management plan by regulation.
Clause 78 -- Transgender and intersex detainees -- sexual identity
Section 169A of the Legislation Act 2001 defines a `transgender person' as a person
who identifies, or has identified, as a member of a different sex by living, or seeking
to live, as a member of that sex.
Section 169A of the Legislation Act 2001 defines an `intersex person' as a person
who, because of a genetic condition, was born with reproductive organs or sex
chromosomes that are not exclusively male or female.
The sexual identity of a person has a critical impact upon the person's placement
within a remand centre or prison and how intimate searches are conducted.
It is important that the corrections agency knows how the person identifies upon
admission.
Clause 78(3) provides a decision-making choice for the detainee and the chief
executive if the detainee doesn't or refuses to nominate an identity. The chief
executive must take advice on the matter from a doctor, by way of (5).
Under clause 78(4) the chief executive may change the sexual identity associated with
the detainee, if the detainee requests so. The chief executive must take advice on the
matter from a non-therapeutic doctor, by way of (5).
A detainee must be notified of any decision regarding the detainee's sexual identity.
The register in clause 75 must also be amended accordingly.
Clause 79 -- Security classification -- basis etc
The government has foreshadowed in the Alexander Maconochie Centre Functional
Brief, 2005, that the prison will be designed with relatively small units and separation
between areas to allow for the accommodation of different prisoners according to
security classification.
Clause 79 requires detainees to be classed for their security risk. This classification is
subject to yearly review.
Clause 79(2) sets out the factors that must be considered when deciding the class of
security risk the detainee poses. The factors contemplate the risk the person may pose
within the prison, as well as the risk they pose if they escape.
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Clause 79(4) invokes the human rights principle of proportionality in relation to
classing detainees. Proportionality requires that the exercise must be: necessary and
rationally connected to the objective; the least restrictive in order to accomplish the
object; and not have a disproportionately severe effect on the person to whom it
applies.
Clause 80 -- Prohibited things
Preventing contraband from being kept, or smuggled into, a correctional centre is a
key way of keeping every detainee and employee safe.
Clause 80 enables the chief executive to declare things, or classes of things, to be
prohibited. Section 145(b) of the Legislation Act 2001 interprets words in Acts as
meaning both singular and plural unless explicitly stated otherwise. Any prohibited
thing under clause 80 would apply to the whole class of things. For example, if
scissors were prohibited then all scissors would be prohibited.
Upon admission the chief executive must inform detainees of their obligation not to
possess prohibited things.
Any declaration must be notified on the ACT's legislation register in accordance with
the Legislation Act 2001.
Clause 81 -- Possession of prohibited things
Clause 81 creates an offence for a detainee to possess a prohibited thing, notified in
clause 80.
It is a defence to the offence if the chief executive approves the detainee's possession
of the thing.
Possession of a prohibited thing is also a disciplinary breach under chapter 10.
Clause 82 -- Work by detainees
Clause 82 authorises the Executive to make regulations about work that may be done
by detainees and nominal payments for that work.
Clause 217, discussed below, stipulates that there is no employment relationship
between detainees and the ACT Government irrespective of any work completed or
nominal payments made.
It is envisaged that detainees would be assigned tasks within correctional centres and
that some prisoners would engage in community service while under guard.
Any payments made would be deposited into the trust account discussed at clause 83
below.
Clause 83 -- Trust accounts for detainees
Clause 83 requires the chief executive to hold money belonging or owing to detainees
in a trust account.
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Clause 83 authorises any fines incurred as a consequence of discipline to be deducted
from a detainee's account.
Detainees may pay for approved goods and services from this account.
Clause 83(3) empowers the executive to make regulations about the management of
trust accounts.
Clause 84 -- Prohibited areas
This clause provides the chief executive with a power to declare parts of correctional
facilities to be prohibited areas. The areas may be prohibited to detainees, visitors,
classes of workers at facilities or classes of corrections officers.
The clause does not create an offence in its own right. However, a disciplinary breach
would apply to detainees and an offence for visitors would apply if they disobeyed a
direction not to enter a prohibited area. Likewise for corrections officers and other
staff, entering a prohibited area would be a disciplinary breach under the Public
Sector Management Act 1994 or of their relevant contract.
Clause 85 -- Non-smoking areas
Tobacco, coffee and tea are likely to be the only legally available drugs within the
prison or remand centres. The government foreshadows that quit-smoking programs
will be readily available to all prisoners. However, a ban on all smoking in the prison
would create considerable behavioural problems at this time in history.
Consequently, clause 85 displaces existing public law regulating smoking and
authorises the chief executive to regulate non-smoking and smoking areas in the
prison.
Clause 86 -- Management and security -- corrections policies and operating
procedures
This clause enables further policies and operating procedures to be made that sets out
the operation, policy or other detail of management and security. As set out in
section 14 any policy or operating procedure must be consistent with this Act.
Subsection (2) requires the chief executive to make operating procedures to account
for births, deaths and marriages within the prison.
Part 9.2 -- Segregation
The segregation of detainees is a fundamental way of managing the safety and health
of detainees. The segregation contemplated in part 9.2, which may include separate
confinement, must be distinguished from the sanction of separate confinement for a
breach of discipline in chapter 10. Although the results may be similar, the purposes
of segregation in part 9.2 are for the purposes of managing safety and health.
A breach of human rights would occur if the powers in part 9.2 were exercised for a
purpose other than health and safety.
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The exercise of any power in this part must apply the human rights principle of
proportionality. Proportionality requires that the exercise of powers must be:
necessary and rationally connected to the objective; the least restrictive in order to
accomplish the object; and not have a disproportionately severe effect on the person to
whom it applies.
The imposition of segregation is open to external review provided by the Bill and
judicial review under common law and the Administrative Decisions (Judicial
Review) Act 1989.
Clause 87 -- Meaning of segregation
`Segregation' has a wide meaning. It can mean anything from restricting a detainee
from being in certain parts of a centre at certain times, through to restricting a
detainee to a particular cell.
The government foreshadows that the Alexander Maconochie Centre will have a
management unit with dedicated cells to enable separation of prisoners, individually
or as a group, from the main body of detainees.
Clause 88 -- Segregation under Part 9.2 -- purpose
A breach of this Bill and human rights would occur if the powers in part 9.2 were
exercised for a purpose other than health and safety.
Clause 89 -- Segregation -- safety and security
Clause 89 empowers the chief executive to segregate a detainee if the detainee poses a
risk to another detainee or staff member at a centre; or if the detainee poses a risk to
the security or order of the correctional centre.
Clause 89(2) requires the chief executive to consider the impact of segregation upon a
detainee because of cultural reasons. This is particularly the case if the person is
indigenous. In some cases the chief executive may not be aware of any cultural
considerations, consequently the obligation would not apply.
Clause 89(3) requires the chief executive to notify the detainee of the direction and
give reasons for the direction.
Clause 89(4) enables the chief executive to revoke the direction if the situation
requiring segregation has changed.
Clause 89(5) enables the chief executive to review segregation at any time upon their
own initiative or upon a request from the detainee. This clause also requires the chief
executive to review a segregation direction if a transfer to another centre is imminant.
As a matter of course, the chief executive must review a segregation direction every
21 days.
Clause 89(6) requires the chief executive to make an active decision about segregation
after a review. This ensures that each decision made to continue segregation is
accountable and can be varified by any authority reviewing the decision or inspecting
the prison.
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Clause 89(7) clarifies that many directions to segregate may be made consecutively.
Clause 89(8) provides a means for ending segregation directions upon a detainee's
transfer to NSW. Once custody of a detainee is passed to the NSW system, the NSW
authorities are responsible for making decisions for any necessary segregation.
(8) also automatically expires a second or subsequent direction under (6)(b) after
90 days. This provision ensures that in the absence of any further decision there is a
maximum time a person may lawfully be in segregation. The intention of the
provision is to enhance the obligation upon the chief executive to make decisions
following review in (5)(c).
Clause 90 -- Segregation -- protective custody
Clause 90 empowers the chief executive to segregate a detainee if the detainee is at
risk from another detainee or detainees. The power may be exercised by the chief
executive at their own volition, or upon request by the detainee.
Clause 90(3) requires the chief executive to notify the detainee of the direction and
give reasons for the direction.
Clause 90(4) enables the chief executive to revoke the direction if the situation
requiring segregation has changed.
Clause 90(5) enables the chief executive to review segregation at any time upon their
own initiative or request from the detainee. This clause also requires the chief
executive to review a segregation direction if a transfer to another centre is imminant.
As a matter of course, the chief executive must review a segregation direction every
21 days.
Clause 90(6) requires the chief executive to make an active decision about segregation
after a review. This ensures that each decision made to continue segregation is
accountable and can be varified by any authority reviewing the decision or inspecting
the prison.
Clause 90(7) clarifies that many directions to segregate may be made consecutively.
Clause 90(8) provides a means for ending segregation directions upon a detainee's
transfer to NSW. Once custody of a detainee is passed to the NSW system, the NSW
authorities are responsible for making decisions for any necessary segregation.
(8) also automatically expires a second or subsequent direction under (6)(b) after
90 days. This provision ensures that in the absence of any further decision there is a
maximum time a person may lawfully be in segregation. The intention of the
provision is to enhance the obligation upon the chief executive to make decisions
following review in (5)(c).
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Clause 91 -- Segregation -- health
Clause 79 empowers the chief executive to segregate a detainee if the detainee is at
risk because of their physical or mental health, or poses a risk to anyone else because
of their physical or mental health.
For example, a detainee who has a mental health condition may be experiencing
behavioural problems while adjusting to a new medication. If the detainee poses a risk
of violence during this period the chief executive may segregate the detainee to
prevent violence.
Another example would be a detainee who is illiciting symptoms of illness but is in
denial about the symptoms and won't discuss them with the doctor. The chief
executive may segregate the person to better assess their health.
Clause 91(2) requires the chief executive to notify the detainee of the direction and
give reasons for the direction.
Clause 91(3) enables the chief executive to revoke the direction if the situation
requiring segregation has changed.
Clause 91(4) enables the chief executive to review segregation at any time upon their
own initiative or a request from the detainee. If a therapeutic doctor requests the
review, the chief executive must review the segregation direction. This clause also
requires the chief executive to review a segregation direction if a transfer to another
centre is imminant. As a matter of course, the chief executive must review a
segregation direction every 21 days.
Clause 91(5) requires the chief executive to make an active decision about segregation
after a review. This ensures that each decision made to continue segregation is
accountable and can be varified by any authority reviewing the decision or inspecting
the prison.
Clause 91(6) clarifies that many directions to segregate may be made consecutively.
Clause 91(7) clarifies that in making a decision to segregate, or when reviewing
segregation, the chief executive is obliged to consider the doctor's advice.
Clause 92 -- Interstate segregated detainees transferred to ACT
Clause 92 enables interstate segregation orders to continue to apply to a detainee by
translating the order into a relevant direction under part 9.2 of the Bill.
The interstate order only lasts three days once a person is in the custody of the
Territory. Before or after three days the chief executive may decide if a segregation
order is necessary for the detainee in the Territory.
Clause 92(3) clarifies that an interstate direction or order is an order that corresponds
in substance but not form. It also recognises a direction or order made by any
Australian jurisdiction under corresponding law.
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Clause 93 -- Segregated detainees removed to NSW
Section 26 of the Crimes (Sentence Administration) Act 2005 recognises that
historically, people sentenced to imprisonment under ACT law have been committed
to NSW to serve their sentence. The foreshadowed ACT prison will inverse the
current number of ACT offenders serving sentences in NSW. Once the prison is
commissioned, the number of ACT offenders serving their sentence in NSW will be a
minority, not the majority.
Clause 93 enables segregation directions to continue applying after a detainee is
transferred to NSW custody.
Clause 93(2) enables the direction to be interpreted and modified according to NSW
law. The direction ends three days after the detainee is in NSW custody.
Clause 94 -- Segregation not to affect minimum living conditions
Clause 94 ensures that the conditions prescribed by clause 12 and chapter 6 of the Bill
are not ousted by segregation directions.
However, 94(2) ensures that the application of the standards does not set aside the
effect of the segregation direction. In some cases the circumstances may require a
temporary suspension of the conditions. For example, if a detainee is segregated
because they have a contagious disease, a visit, as prescribed by clause 49, may not be
possible.
Clause 95 -- Application for review of segregation directions
Clause 95 enables a detainee to apply for a review of a segregation decision under this
part of the Bill.
An application is made to an adjudicator, and it must be made within 7 days of the
detainee being notified of a segregation decision.
An `adjudicator' is a magistrate appointed to review disciplinary matters and
segregation decisions. Appointments of adjudicators is at clause 176 below.
Clause 95(3) stipulates that the segregation decision is not to be stayed, set aside or
stopped in any way if an application for review is made. The segregation decision
remains in force unless an adjudicator makes another decision in its place or revokes
the decision.
Clause 96 -- Review of segregation directions
Clause 96 empowers an adjudicator to review a segregation direction or refuse to do
so.
If an adjudicator decides to review a segregation direction the inquiry procedure in
chapter 11 must be used. If an adjudicator refuses to review the segregation
clause 96(5) requires the adjudicator to provide reasons for the refusal. The clause
enables the Executive to make regulations modifying the chapter 11 procedures.
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After an inquiry, the adjudicator may confirm the segregation direction; or make a
decision that the chief executive has the power to make, which substitutes for the
existing decision. The adjudicator can vary the existing direction, or set it aside. The
clause enables the adjudicator to lift segregation.
Clause 97 -- Other separation of detainees
Clause 97 obliges the chief executive to separately accommodate men and women in a
corrections centre.
Clause 97 empowers the chief executive to make policies or operating procedures that
provide for the general separation of detainees.
An operating procedure may separate classes of detainees from using particular
facilities at the same time; or require work teams to be separated on the basis of
detention status or other factors such as vulnerability.
Part 9.3 -- Monitoring
Section 12 of the Human Rights Act 2004 states that everyone has the right not to
have their privacy, family, home or correspondence interfered with unlawfully or
arbitrarily.
A consequence of lawful detention is the inevitable displacement of that right to a
degree necessary to secure the person in custody and run a safe prison or remand
centre.
Monitoring the activities and whereabouts of detainees is a way to prevent violence,
dealing in drugs or other contraband and escape. It is an essential part of modern
prisons and remand centres.
Clause 98 -- General considerations
Clause 98 sets out the factors in (a) to (g) the chief executive must engage when
establishing systems to monitor detainees, or exercising the powers to monitor
individual detainees.
A number of the factors are counterposed, such as the need to detect prohibited things
entering a prison versus the need to protect the privacy of a detainee. In this sense, the
chief executive or their delegate must exercise their good judgment.
Clause 98 requires the application of the human rights principle of proportionality. In
this case, proportionality requires the exercise of powers must be: necessary and
rationally connected to the objective; the least restrictive in order to accomplish the
object; and not have a disproportionately severe effect on the person to whom it
applies.
Clause 99 -- Monitoring at correctional centres
Clause 99 provides authority for monitoring any part of a correctional centre. It is
envisaged that the Alexander Maconochie Centre would have extensive closed circuit
cameras.
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Clause 99 is subject to clause 98.
Clause 100 -- Personal monitoring devices
As discussed earlier, the new prison will be designed with relatively small units and
separation between areas to allow for the accommodation of different prisoners
according to their security classification.
In addition to ensuring detainees are where they should be, it is also important to the
safety of corrections staff and other employees for security manager to know where
they are during their duties.
Clause 100 empowers the chief executive to direct anyone entering a correctional
centre to wear an electronic monitoring device.
The government foreshadows that the Alexander Maconochie Centre will use radio
devices worn on the wrists of detainees, staff and relevant visitors. These devices will
be monitored by a central area. Each device is uniquely identified and signals the
location of the wearer within metres of accuracy.
The use of such a system will reduce the level of observation required. The system
will also improve the safety of the prison by enabling corrections staff to immediately
know the location of detainees, staff and relevant visitors in the event of violence,
accident or other emergency.
Clause 101 -- Interfering with personal monitoring devices
Clause 101 makes it an offence to interfere with personal monitoring devices that are
required to be worn by clause 100.
The devises envisaged will be tamper proof and will detect attempts to remove the
device or block its signal.
Interfering with a device will also be a disciplinary breach in chapter 10.
Clause 101(2) clarifies that the liability is not limited to the wearer of the device. If
another person interferes with the device they are liable for the offence.
Clause 101(3) provides a defence to the offence if the interference is authorised by the
chief executive.
Clause 101(4) defines `interfere' to include a range of things that would hinder or stop
the function of the device.
Clause 101 is not a strict liability offence.
Clause 102 -- Monitoring telephone calls etc
As discussed in clause 49, the chief executive has a power to deny or limit a
detainee's phone calls or other electronic communication, such as e-mails, if the chief
executive suspects the detainee will undermine security at a prison, re-victimise a
victim, circumvent an investigation or cause community distress.
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Clause 102 authorises the chief executive to monitor phone calls, and other electronic
communication, to detect for the matters mentioned above and for any other criminal
activity. The parties to a communication must be informed that the communication is
open to monitoring.
If evidence of a criminal offence is gleaned from monitoring, the police must be
advised. Investigations of offences are a function of the police.
The chief executive is not authorised to monitor protected communication, which is
communication with the people mentioned in 102(5) acting in an official capacity.
102(5) also contemplates `electronic communication' in broad terms and includes
technology that does not yet exist at the time of the introduction of this Bill.
Clause 103 -- Monitoring ordinary mail
Akin to the reasons informing the power to monitor phone calls, discussed above,
clause 103 empowers the chief executive to monitor ordinary mail. Ordinary mail is
any mail other than the categories of mail set out in the definition of protected mail in
103(4).
The chief executive may open and inspect a detainee's ordinary mail. Ordinary mail
may be read if the chief executive believes the mail will undermine security,
revictimise a victim or circumvent any investigative process.
If the monitoring of mail reveals evidence of an offence the police must be advised.
Investigations of offences are a function of the police. See clause 105 below.
Clause 103(3) authorises the chief executive to conduct random reading of detainees'
mail in addition to the suspicion based power of clause 103(2). An operating
procedure can be drafted to set out the detail of how this power will be exercised.
Clause 103(4) defines `protected mail' as correspondence between a detainee and the
people listed in (a) to (e) acting in their official capacity. `Search' is also defined
broadly so that it would be unnecessary to physically open every piece of mail.
Clause 104 -- Monitoring protected mail
Protected mail may be opened in the presence of a detainee if it is suspected that the
mail is dangerous or contains contraband.
Protected mail may only be read with the written consent of the detainee.
Clause 105 -- Mail searches -- consequences
Clause 105 requires any mail that is searched, but not seized, to be delivered as
intended to the addressee.
Clause 105(2) requires the chief executive to pass on information that may be
evidence of an offence to the police.
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Part 9.4 -- Searches
A Human Rights Approach to Prison Management states:
Individual prisoners . . . will also have to be personally searched on a regular basis to
make sure that they are not carrying items which can be used in escape attempts or to
injure other people or themselves, or items which are not allowed, such as illegal drugs.
The intensity of such searches will vary according to circumstances.
. . . On other occasions, especially if there is reason to believe that individual prisoners
have something secreted about their person or when they are designated as high risk
prisoners, it will be necessary to carry out what is known as a strip search. This
involves requiring prisoners to remove all clothing and to show that they have nothing
hidden about their person.
There should be a detailed set of procedures which staff have to follow when carrying
out personal searches. These procedures:
· should define the circumstances in which such searches are allowed;
· should ensure that prisoners are not humiliated by the searching process, for
· example, by having to be completely naked at any time;
· should stipulate that prisoners should be searched by staff of the same gender;
· should prohibit security staff from carrying out internal searches of a prisoner's
body. [2002, page 64]
Part 9.4 provides for searches of people and places within the boundaries of
correctional facilities. Each kind of search sets out the circumstances that trigger the
power to conduct the search and the intrusiveness allowed by the search.
Division 9.4.1 -- Searches -- general
Clause 106 -- Definitions -- searches
Clause 106 sets out the definitions of the types of searches contemplated by part 9.4.
The definitions are derived from the Crimes Act 1900, part 10.
Clause 107 -- Intrusiveness of searches
Clause 107 obliges the officer conducting the search to engage the type of search that
is commensurate with the circumstances.
Clause 107 also invokes the principle of proportionality, the exercise of the power
must be: necessary and rationally connected to the objective; the least restrictive in
order to accomplish the object; and not have a disproportionately severe effect on the
person to whom it applies.
Clause 108 -- Searches of transgender and intersex detainees
Clause 108 clarifies that the sex of the person to be searched is the sex recorded in the
register of detainees. How a detainee's sexual identity is established is set out in
clause 78, above.
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Clause 109 -- Register of strip and body searches
Clause 109 requires the chief executive to keep a register of strip searches and body
searches. The register must include the information set out in 109(2)(a) to (f).
Clause 109(4) stipulates that anyone authorised to inspect a correctional centre under
chapter 7, discussed above, may also inspect the register.
Clause 109 does not prescribe that the register must be a hard-copy book. The register
may be electronic.
Division 9.4.2 -- Scanning, frisk and ordinary searches
Clause 110 -- Scanning, frisk and ordinary searches -- directions
Clause 110 empowers the chief executive to direct a scanning search, frisk search or
ordinary search of a detainee, corrections officer or anyone else who is working at a
correctional centre or visiting a correctional centre. The discretion to order a search by
the chief executive must be based upon the need to uphold the safety and security of
the correction centre. The exercise of this discretion is not based upon individualised
suspicion.
Clause 110(2) empowers all corrections officers to conduct a scanning, frisk or
ordinary search of a detainee if the officer suspects the detainee is carrying contraband
or something that is a risk to the safety or security of the centre.
Clause 110(1) may be exercised by way of operating procedure. For example, the
chief executive may direct that all people entering the prison, or parts of the prison,
must enter through a scanning device. Alternatively, all detainees returning from work
duties outside of a remand centre must undergo a frisk search.
Clause 111 -- Scanning, frisk and ordinary searches -- requirements
Clause 111 sets out the procedure required for scanning, frisk and ordinary searches.
Officers must be the same sex as the detainee, which includes identifying as a
particular sex -- see clauses 78 and 108 above. Alternatively, another corrections
officer or employee working at the corrections centre who is the same gender as the
detainee, must be present. The other person of the same gender observing the search
of the detainee, cannot themselves be a detainee.
Division 9.4.3 -- Strip searches
Clause 112 -- Strip searches -- directions
Clause 112 empowers the chief executive to conduct a strip search if the chief
executive believes that the detainee is concealing something that:
· may be a prohibited thing;
· may be used to intimidate someone;
· may be used to engaged in an offence or disciplinary breach;
· may be a risk to safety; or
· may be a risk to the security or good order of the centre.
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Clause 112(2) clarifies that a strip search may be conducted immediately after a less
intrusive search. However, this does not oust the requirement of grounds for a strip
search.
Clause 113 -- Strip search requirements
Clause 113 sets out the procedure required for strip searches.
Officers must be the same sex as the detainee, which includes identifying as a
particular sex -- see clauses 78 and 108 above. At least one other correction officer
must also be present and may assist in the search.
Clause 113(2) ensures that a strip search does not involve any more officers than
necessary. A group of officers observing a strip search may be regarded as
humiliating treatment and would be a breach of human rights.
Clause 113(3) authorises other corrections officers present to assist in the search.
Clause 113(4) authorises the corrections officer conducting the search to give the
detainee directions in order to facilitate the search. The clause contemplates directions
to the detainee that would enable reasonable view of parts of the body that may not
readily visible. For example, behind the ears, under arms, under feet. While a
direction that a detainee open their mouth would be reasonable, only a visual
inspection of the mouth by the officers in question would be lawful.
Clause 114 -- Strip searches -- general rules
Clause 114 ensures that the dignity and privacy of the person being strip searched is
upheld as far as practicable.
Clause 114(1) requires strip searches to be conduced in a private area or an area that
provides reasonable privacy.
Clause 114(2) prohibits strip searches to be conducted in the presence of a person of
the opposite sex. The presence of other people not necessary for the search, whether
they are correction officers or not, is also prohibited.
Clause 114(3) prohibits the search from requiring the detainee to be totally naked. The
search must be conducted in a manner that does not require the removal of more
clothes than necessary. These prohibitions do not prevent a search of the clothes
themselves once removed from the person.
Clause 114(4) prohibits corrections officers from touching a detainee when a strip
search is conducted. However, the prohibition on touching is nullified if the use of
force is required. It should be noted that the use of force must be a last resort, must be
proportionate to the circumstances and can only involve force that is reasonable and
necessary to achieve the purpose (see part 9.7).
Clause 114(5) creates an obligation upon all corrections officers engaged in a strip
search to conduct the search in a private, humane and dignified manner.
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The detainee must be provided with suitable clothing if any clothing is seized during
the search.
Division 9.4.4 -- Body searches
Body searches are the most intrusive search possible. This search enables contact and
manipulation of a detainee's cavities to enable a physical search of the detainee's
cavities.
Clause 115 -- Body searches -- directions
Clause 115(1) empowers the chief executive to authorise a non-therapeutic doctor to
conduct a body search of a detainee if the chief executive suspects: the detainee has
ingested something that may be harmful; the detainee is concealing contraband; or the
detainee is concealing something that is evidence of an offence or disciplinary breach.
Clause 116 -- Body searches -- presence of nurse and corrections officers
Clause 116 ensures a nurse is also present at the search and that, of the two medical
people conducting the search, at least one must be the same sex as the detainee. The
nurse must be a non-therapeutic health professional appointed under clause 22.
Clause 116(3) authorises one or more corrections officers to be present during the
search. The officers must be the same gender as the detainee.
Clause 116(4) ensures that a body search does not involve any more officers than
necessary. A group of officers observing a body search may be regarded as
humiliating treatment and would be a breach of human rights.
Clause 116(5) creates an obligation to conduct a body search in a private area.
Clause 117 -- Body searches -- assistance from corrections officer
Clause 117(1) authorises the doctor conducting a body search to seek assistance from
a corrections officer.
Any corrections officer assisting must be the same sex as the detainee.
Clause 118 -- Body searches -- rules about detainee's clothing
Clause 118(1) prohibits the search from requiring the detainee to be totally naked. The
search must be conducted in a manner that does not require the removal of more
clothes than necessary. These prohibitions do not prevent a search of the clothes
themselves once removed from the person.
The detainee must be allowed to dress in private following the search. The detainee
must be provided with suitable clothing if any clothing is seized during the search.
Clause 119 -- Body searches -- rules about touching detainees
Clause 119 authorises the doctor or nurse of the same sex of the detainee to touch the
detainee and examine the detainee's orifices.
Clause 120 -- Body searches -- seizing things
Anything discovered during the search that could be evidence of an offence or
disciplinary breach may be seized by the doctor, unless seizing the thing would cause
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injury to the detainee. Anything seized must be passed on to the relevant corrections
officer.
Division 9.4.5 -- Searches of premises and property
Clause 121 -- Searches -- premises and property
Clause 121 empowers the chief executive to search any part of a correctional centre;
anything at a centre; and any vehicle used by the centre. The examples provided
clarify the intended extent of the powers. The power extends to any possessions in a
detainee's cell or carried by a detainee, but not to the extent of the detainee's clothing.
The power does not extend to searches of detainees or visitors. Searches of detainees
are covered by divisions 9.4.2 to 9.4.4 above. Searches of visitors are covered by part
9.8 below.
Searches may be conducted physically or with the aid of a device, dogs or other
technology.
Clause 122 -- Searches of detainee cells -- legally privileged material
The case of R (Daly) v Secretary of State for the Home Department 2 AC 2001 dealt
with two conflicting principles: firstly, the principle that the Executive should not
have inherent access to a person's legally privileged material (predominantly letters to
and from their lawyer); secondly, that regular searches of cells should take place in
the absence of prisoners to protect the search methods used by prison staff.
The House of Lords decided that a blanket approach to excluding a detainee from
being present during a search of legally privileged material was not acceptable. As a
matter of law the Lords determined that a prisoner should be present when legally
privileged material was being searched. The Lords' decisions also mention other
means of separating the material from the search if the prisoner was not present to
prevent the conundrum.
Clauses 122 and 123 set out the rules for searches involving legally privileged
material.
Clause 122 enables a search of a detainee's cell in the absence of the detainee if the
detainee takes legally privileged material with them or the material is stored
somewhere else. For example, a corrections facility may issue standard storage
containers for legally privileged material, or a system of lockers.
Clause 122 enables an operating procedure or policy to be made that sets out the detail
of any storage options for legally privileged material.
Clause 123 -- Searches of detainee cells -- suspected legally privileged material
Under clause 123(1) the existence of a storage system for legally privileged material
does not absolve responsibility of corrections officers if they find material that they
believe to be legally privileged. If a corrections officer finds material during a search
that they suspect to be legally privileged, the search must either stop or the detainee
must be present.
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Clause 123(1) also means that if the legally privileged material is still in the cell, the
detainee must be present during its search.
Clause 123(2) authorises an examination of legally privileged material if the detainee
is present.
Clause 123(3) prohibits the reading of legally privileged material unless the detainee
is present and consents to the material being read; or there is reasonable suspicion that
the material may threaten the security of the facility; or the material contains
information that may be evidence of an offence or a disciplinary breach.
An example for (3) would be the use of legally privileged material to conduct
gambling. Also the use of legally privileged material to transmit messages to other
prisoners, criminal associates etc.
Clause 123(4) enables a search of legally privileged material only if urgent
circumstances exist to do so.
Clause 123(5) requires any exercise of 123(4) to be recorded in the register of
detainees.
Division 9.4.6 -- Searches -- miscellaneous
Clause 124 -- Searches -- use of corrections dogs
Clause 124 enables specially trained dogs to be used during any searches authorised
by this part of the Bill.
Trained dogs have great acuity for smelling and identifying particular substances,
such as drugs or explosives. Enabling dogs to be used for searches will reduce the
time taken for searches and the level of intrusiveness required for the search.
Clause 125 -- Searches -- use of force
Clause 125 explicitly authorises the use of force to carry out a search or secure
anything seized, or that needs to be seized, in a search.
The use of force must be proportionate and reasonable to achieve the purpose. The
provisions governing any use of force under the Bill are set out in part 9.7 below.
Part 9.5 -- Seizing property
Part 9.5 provides the powers and procedures for seizing property.
Clause 126 -- Seizing mail etc
Clause 126(1) authorises the chief executive to seize prohibited things in a detainee's
protected mail, or any other thing in the mail that may harm someone.
Clause 80 enables the chief executive to declare things, or classes of things, to be
prohibited. For example, if scissors were prohibited then all types of scissors would be
prohibited.
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An example of something that may be suspected of causing harm is a substance that is
or resembles explosive material, biological agents or poisons.
Clause 126(2) empowers the chief executive to seize a detainee's ordinary mail if the
chief executive believes that doing so would stop the transmission of: a prohibited
thing; an item that may pose a risk to the security or good order of the centre; or may
be used to commit an offence or disciplinary breach.
126(2) also empowers the chief executive to seize mail if the correspondence itself
will cause harm of any nature or is a means of making an unauthorised purchase.
Clause 126(3) prohibits the chief executive from seizing a document that affords legal
professional privilege, provided that the chief executive can reasonably ascertain from
the document that it is privileged.
Clause 127 -- Seizing property -- general
Clause 127 empowers the chief executive to seize a detainee's property if the chief
executive believes that the property would jeopardise the security or good order of the
centre; or the safety of anyone at a centre.
This clause also empowers the chief executive to seize property that is intended for
the commission of an offence or a disciplinary breach.
Any prohibited thing found during a search may also be seized unless written
approval exists for the detainee to possess the thing.
Clause 127(3) prohibits the chief executive from seizing a document that affords legal
professional privilege, provided that the chief executive can reasonably ascertain from
the document that it is privileged.
Clause 128 -- Receipt of seizure
Clause 100 requires the chief executive to provide the detainee with a receipt of
anything seized.
The owner, or the person in possession of the thing, must be given a receipt within 7
days.
Clause 128(3) sets out what must be in the receipt.
Clause 128(4) clarifies that an item seized may yet to be possessed by a detainee. For
example, something mailed to a detainee that would have been a gift.
Clause 129 -- Forfeiture of things seized
Clause 129 is an explicit power for things seized to be forfeited to the Territory.
If an item is allowed to be possessed by a detainee but the owner cannot be found, or
the thing cannot be returned to the owner, the item may be forfeited the Territory.
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If an item is prohibited, or may be used to commit an offence, or is unsafe, the item
may be forfeited to the Territory.
Clause 126(2) authorises the chief executive to make a decision about what to do with
the forfeited item. Weapons or drugs may be passed on to the police for destruction;
other items may be passed to the public trustee for sale; other items may be kept for
the general use of the prison.
Clause 126(3) clarifies that an order made under section 250 of the Crimes Act 1900
supersedes the chief executive's discretion.
Clause 130 -- Return of things seized but not forfeited
If an item is allowed to be possessed by a detainee but the item is evidence of a breach
or offence, the item must be returned at the end of six months or at the end of the
relevant proceedings, including appeals.
If an item is allowed to be possessed by a detainee and it has not evidence it must be
returned immediately to the detainee.
Part 9.6 -- Alcohol and drug testing
Alexander Maconochie Centre Functional Brief notes that:
Illicit drugs pose one of the most serious problems in prisons. Drug use can cause death
or serious illness (through overdosing), spread blood borne viruses and diseases such as
AIDS/HIV and Hepatitis B and C (through shared use of dirty needles), react badly
with prescribed drugs, cause violent behaviour, jeopardise rehabilitation, and impact
negatively on families.
The AMC will have in place policies and procedures to deal specifically with drugs in
prison. Prison drug and alcohol policies will be an integral part of Centre management,
addressing health care, rehabilitation and reintegration, and administration and
discipline. Drug use, particularly injecting drug use behaviour, presents as an OH&S
risk to staff, other prisoners and visitors. [2005, page 49]
Part 7.6 provides the requisite powers to test detainees and corrections officers for
drugs and alcohol. Testing for drugs and alcohol, and taking action on positive tests,
are critical ways of neutralising any drug market within a prison and managing
detainees with drug and alcohol problems.
Division 9.6.1 -- General
Clause 131 -- Definitions -- drug and test sample
Clause 131 defines `drug' in a way that captures illicit drugs and excludes drugs that
are authorised to be taken by a detainee.
Clause 131 defines `test sample' as including a range of tissues or excreta from the
body.
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Clause 132 -- When test sample positive
Clause 132 defines what a `positive' test sample means.
A detainee who refuses to provide a sample, or intentionally fails to provide a sample,
is deemed to have provided a positive test sample. Likewise, substitution or masking
of a sample is also deemed to be a positive test sample. A definition of `invalid' is
provided, contemplating tampering and substitution.
For full-time detainees a test sample that results in a positive presence of drugs or
alcohol is a `positive' test sample.
For periodic detainees a `positive' test sample is a sample that results in a positive
presence of drugs, or a level of blood-alcohol concentration above the prescribed
limit. The prescribed limit is 0.02g of alcohol per 100mL of blood. However, the Bill
provides the Executive with a power to make a regulation that prescribes another
limit.
Clause 132(2) ensures that failing to provide a sample does not extend to detainees
who have a reasonable excuse for not being able to provide a sample.
Clause 132(3) enables the chief executive to decide a drug should be exempt from
being a prohibited drug under this part of the Bill. Any exemptions must be notified.
The powers and procedures to test for alcohol and drugs set out in this part are
foreshadowed for use under the Crimes (Sentence Administration) Act 2005. This
enables one set of testing procedures to be used for all supervision of sentences,
custodial and non-custodial.
Division 9.6.2 -- Alcohol and drug testing -- detainees
Clause 133 -- Alcohol and drug testing of detainees
Clause 133(1) empowers the chief executive to direct a detainee to provide a test
sample, and state what type of sample is required.
Clause 133(2) authorises the chief executive or non-therapeutic doctor or nurse to
direct how the detainee must provide the sample. For example, the detainee may be
required to blow into a device; or use a buccal swab kit to take a sample of saliva
from their mouth; or to urinate into a container.
Clause 133(3) ensures that any sampling method must be taken in accordance with
any operating procedures made by the chief executive. However, only non-therapeutic
doctors and nurses can take blood.
133(4) requires samples to be given to corrections officers for identification and
recording, prior to analysis. In 133(5) after analysis the chief executive must notify
the detainee of the results as soon as practicable.
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Clause 134 -- Effect of positive test sample from detainee
A positive test sample is evidence of a disciplinary breach, set out in chapter 10
below.
A positive test sample may also require the chief executive to revisit decisions such as
security classification, health care arrangements and other matters relevant to case
management.
Division 9.6.3 -- Alcohol and drug testing -- corrections officers
Clause 135 -- Alcohol and drug testing of corrections officers
Clause 135 authorises the Executive to make regulations to establish a scheme of drug
and alcohol testing of corrections officers and other people involved in the running of
a corrections centre.
Part 9.7 -- Use of force
The deprivation of liberty and other stressors as a consequence of detention increase
the potential for detainees to engage in violence. Alternatively, the same factors may
contribute to the potential of detainees refusing to follow direction.
Rule 54 of the Standard Minimum Rules for the Treatment of Prisoners (1957) states
that:
Officers of the institutions shall not, in their relations with the prisoners, use force
except in self-defence or in cases of attempted escape, or active or passive physical
resistance to an order based on law or regulations. Officers who have recourse to force
must use no more than is strictly necessary and must report the incident immediately to
the director of the institution.
Prison officers shall be given special physical training to enable them to restrain
aggressive prisoners.
Except in special circumstances, staff performing duties which bring them into direct
contact with prisoners should not be armed. Furthermore, staff should in no
circumstances be provided with arms unless they have been trained in their use.
Part 9.7 authorises the use of force and prescribes for the proportionate use of force.
Clause 136 -- Managing the use of force
Clause 136 obliges the chief executive to use force as a last resort; and when force is
needed, only to use the necessary force required.
The chief executive must make a policy or operating procedure that sets out the detail
of the circumstances where particular types of force may be used, who may use
particular types of force and the nature of the force involved.
Clause 137 -- Authorised to use force
Clause 137 empowers corrections officers to use necessary and reasonable force to
achieve the purposes set out in (a) to (h).
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Force may only be used if no other means would achieve the purpose.
Clause 138 -- Application of force
Clause 138 sets out how force may be used, when force is required.
Clause 138(1) requires corrections officers to give a warning that they will use force
and a reasonable time for the detainee to heed the warning and defer to the officer.
Corrections officers must only use force that is necessary and reasonable in the
circumstances. Corrections officers must attempt to use force in a manner that reduces
the risk of death or permanent injury.
Clause 138(2) under urgent circumstances the corrections officer is not obliged to
engage in the decision-making and warning required by 138(1)(a) and (b). Even in
urgent circumstances a corrections officer must attempt to use only the force
necessary to achieve the purpose and in a manner that reduces the risk of death or
permanent injury.
Clause 139 -- Use of restraints or weapons
Clause 139(1) clarifies that the use of force authorises the use of restraints and
weapons listed in (6), subject to the restrictions in this clause.
Clause 139(2) must ensure that any use of a weapon or restraint is proportionate to the
circumstances informing the use of force. The kind of weapon or restraint must be
appropriate for the circumstances and the weapon or restraint must be used
appropriately.
Consistent with the Standard Minimum Rules for the Treatment of Prisoners (1957)
and the European Standard Prison Rules (2006) any officer using a restraint or
weapon must be trained to use the equipment. Any weapon or restraint must be used
in accord with any policy or operating procedure.
Clause 139(4) authorises a health professional who is appointed to carry out
non-therapeutic functions to administer drugs as a restraint, or direct the use of a
particular form of restraint. This power contemplates situations where a detainee's
state of mind and behaviour may require the administration of a sedative or similar
drug. The power could be used if a person is violently psychotic but yet to be
adequately diagnosed -- particularly in relation to transporting the detainee.
Clause 139(5) limits any use of firearms to circumstances that involves a threat to life
or a detainee offers armed resistance to officers [Part IV, International Prison Policy
Development Instrument, Canada, 2001].
Clause 139(6) lists the restraints or weapons a corrections officer is authorised to use
when using force. The clause enables the Executive to make regulations listing further
weapons and restraints.
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Clause 140 -- Medical examination after the use of force
Any detainee injured by the use of force under this chapter must be examined, and if
necessary treated, by a doctor appointed to carry out therapeutic tasks.
Clause 141 -- Reporting -- use of lethal force
Clause 141 requires a record to be made of any use of force that causes injury or
death. The record must set out: the details of the incident leading up to the use of
force; the decision to use force; and the nature of the force used.
The record must be available for inspection by the inspection entities contemplated in
chapter 7.
Part 9.8 -- Access to correctional centres
As discussed earlier, positive changes in prisoners behaviour will be greatly
influenced by relationships with family and friends. Maintaining these relationships
during detention is an important factor in successful rehabilitation and release of
prisoners.
Part 9.8 provides for visitors to correctional centres.
Clause 142 -- Visiting conditions
Clause 142 empowers the chief executive to declare conditions that apply to visitors
and visits at a corrections centre.
The declaration must be tabled at the Legislative Assembly to allow Assembly
members to consider if they wish to move a motion of disallowance. If the declaration
is allowed, it must also be notified before becoming enforceable.
Clause 143 -- Notice of visiting conditions
The chief executive must make reasonable efforts to alert visitors to any conditions in
force. A notice must be put up and copies of the conditions made available.
Clause 144 -- Taking prohibited things etc into correctional centre
Clause 144 creates an offence for taking, giving or removing a prohibited thing from a
correctional centre.
A defence to the offence is the giving, taking or removing of a prohibited thing that is
approved by the chief executive.
`Prohibited things' are those things declared and notified by the chief executive to be
prohibited, as discussed at clause 80. Prohibited thing in clause 144 is extended to
include an element or component that would make a prohibited thing. For example, if
mobile phones are prohibited things, then a mobile phone battery would also be
prohibited.
Clause 145 -- Directions to visitors
Clause 145 authorises the chief executive to give visitors directions to ensure the
visitor complies with any conditions in force or to uphold the security or good order
of a centre.
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Clause 145(2) and (3) creates a strict liability offence for a visitor failing to comply
with a direction.
The government is of the view that a strict liability offence is warranted. The physical
element of the offence, a failure to comply, is the critical feature of the offence.
Providing for mental elements of the offence would diminish the regulating purpose
of the offence.
The offence extends the existing statutory defences in the Criminal Code 2002 by
including a defence that the person took reasonable steps to comply with the direction.
Clause 146 -- Searches of visitors
Clause 146 authorises the chief executive to conduct frisk search, scanning search or
ordinary search of a visitor if the person is suspected of carrying something that is
prohibited or a threat to the centre. These kind of searches engage in minimal
intrusiveness upon a person's body, and are defined at clause 106.
The search procedures in part 9.4, and the powers and procedures to seize property in
part 9.5 apply.
Clause 146(3) stipulates that corrections officers cannot use force to search a visitor.
Clause 147 -- Directions to leave correctional centres
Clause 147 empowers the chief executive to refuse a person entry to a centre and to
direct a person to leave a centre.
The power may be exercised if the chief executive believes the person is drunk, under
the influence of drugs, has a prohibited thing, is a risk to the security and order of the
centre, or the person contravenes a lawful direction.
Clause 147(3) and (4) creates a strict liability offence for a visitor failing to comply
with a direction to leave or attempting to enter a correctional centre.
The government is of the view that a strict liability offence is warranted. The physical
element of the offence, a failure to comply, is the critical feature of the offence that
needs to be upheld. Providing for mental elements of the offence would diminish the
regulating purpose of the offence.
The offence extends the existing statutory defences in the Criminal Code 2002 by
including a defence that the person took reasonable steps to comply with the direction.
Clause 148 -- Removing people from correctional centre
Clause 148 authorises the use of force to remove a person from a centre, or prevent a
person entering a centre. The use of force must be commensurate to the need.
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Chapter 10 -- Discipline
In Flynn v King (1949) 79 CLR 1 the then Justice Dixon said "if prisoners could
resort to legal remedies to enforce gaol regulations, responsibility for the discipline
and control of prisoners in gaol would be in some measure transferred to the courts
administering justice". [at 8.] In that era, Justice Dixon regarded that proposition as
bad policy.
As discussed earlier the judicial position turned around in the late 1970s and early
1980s with R v Board of Visitors of Hull Prison; ex parte St Germain (No.1) [1979]
QB 425, being the case usually identified as deciding that administrative decisions
relevant to discipline could be reviewed for lawfulness by a court with appropriate
jurisdiction.
That change obliged corrections authorities to apply administrative law principles to
disciplinary proceedings, and conversely required disciplinary proceedings to be
judicially reviewed for appropriate standards. Consequently, the disciplinary
proceedings fall within the ambit of administrative decisions that require procedural
fairness, as discussed by Justice Mason in Kioa v West (1985) 159 CLR 550:
The law has now developed to a point where it may be accepted there is a
common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestation
of a contrary statutory intention . . . [at 598]
It is now orthodox for Australian courts to review disciplinary proceedings on the
basis of a breach of procedural fairness, namely the right to a fair hearing, the right to
an unbiased hearing and a decision based on logically probative material. For
examples Henderson v Beltracchi & ors (1999) 105 A Crim R 578 and Kuczynski v R
(1994) 72 A Crim R 568.
Given this history, it is important that the discipline process assists procedural
fairness.
Along with Australian law, section 31 of the Human Rights Act 2004 authorises the
consideration and application of international case law in the ACT. Human rights case
law requires a clear distinction between criminal proceedings and administrative
proceedings. The procedural fairness required for administrative proceedings is of a
lower threshold than a trial procedure required for criminal proceeding. As a result,
administrative proceedings cannot be used to impose a criminal sanction.
The disciplinary process developed aims to keep criminal proceedings separate from
administrative proceedings. It also enables the corrections agency to involve the
police and the Director of Public Prosecutions at an early stage to ensure that crimes
committed in the prison or remand centre are investigated and prosecuted as any other
crime would.
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Part 10.1 -- General
Clause 149 -- Application of chapter 10
Chapter 10 applies to disciplinary breaches and allegations of disciplinary breaches.
Clause 150 -- Definitions for chapter 10
Clause 150 sets out the particular short-hand definitions for words used in chapter 10.
The terms `administrator' and `investigator' are used to denote the collection of
functions delegated to the specific corrections officers by the chief executive. The use
of these terms is intended to clarify the relationship between the officers carrying out
these functions. It is not intended that the officers would hold a statutory office.
Clause 151 -- Meaning of disciplinary breach
Clause 151 lists the disciplinary breaches that may be alleged and proven under this
chapter.
The list of breaches is derived from the International Centre for Criminal Law Reform
and Criminal Justice Policy, International Prison Policy Development Instrument,
2001, part VI, `Discipline'.
Other breaches relevant to the Bill are also included, such as providing a positive
alcohol or drug test; smoking in a non-smoking area, and threats.
The breaches are purposely not constructed as criminal offences. They are intended to
be addressed as administrative matters. However, some of the breaches may also be
substantially the same as a criminal offence, such as assault or theft. Following an
incident the corrections authority may ask the police to investigate a matter if the
nature of the incident or the evidence available warrants a criminal investigation.
Clause 154, below, sets out the relationship between disciplinary proceedings and
criminal proceedings.
Clause 152 -- Meaning of investigator
Clause 152 stipulates that the terms `investigator' denotes the functions associated
with the investigation of disciplinary breaches that are assigned to a corrections
officer, or another person, by the chief executive.
Clause 152(2) enables a person other than a corrections officer to be engaged to
investigate disciplinary breaches. Should a major incident occur within a remand
centre or prison it may be necessary to engage an external person to conduct
investigations to either manage the work load or ensure objectivity.
The use of the term investigator in this part of the Bill is intended to clarify the
relationship between the officers carrying out these functions. It is not intended that
the officers would hold a statutory office.
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Clause 153 -- Meaning of privilege
As discussed under chapter 6 above, a line is drawn between the minimum conditions
that are regarded as entitlements and conditions that may be considered to be
privileges. The distinction between entitlements and privileges is important to enable
the discipline process to work and to ensure that segregation for reasons other than
discipline are fairly applied.
Clause 153 clarifies that a `privilege' is any benefit a detainee may have, material or
otherwise, beyond the minimum entitlements set out in chapter 6.
The clause gives examples.
Clause 154 -- Overlapping disciplinary breaches and criminal offences
In Engel v Netherlands (1979-80) 1 EHRR 647 it was decided that the procedure
required to be consistent with human rights would depend upon whether a charge and
its consequences could be characterised as criminal or administrative. The criteria for
characterisation were:
· the classification of the offence in domestic law;
· the nature of the offence; and
· the severity of the punishment.
This precedent was followed in Ezeh and Connors v United Kingdom (2004) 39
EHRR 1, where the court characterised the power of the prison authority to add days
to a sentence without further reference to a court as a criminal matter, not an
administrative one.
The case of Campbell and Fell v United Kingdom (1985) 7 EHRR 165, also followed
the criteria in Engel, and noted when discussing whether the character of charges laid
were criminal in nature that:
. . . certain conduct which constitutes an offence under the [prison] Rules may also
amount to an offence under the criminal law . . . It also has to be remembered that,
theoretically at least, there is nothing to prevent conduct of this kind being the subject
of both criminal and disciplinary proceedings. [at paragraph 71]
Clause 154 sets out the rules for when a disciplinary process must stop, or may
continue, if a criminal process is in progress. The clause contemplates the potential for
both a criminal and disciplinary process being commenced because of one and the
same behaviour, incident or act.
Clause 154(2) stipulates that a criminal prosecution cannot commence or continue if
disciplinary action has been taken to address the behaviour, incident or act.
Clause 154(3) stipulates that a disciplinary process cannot commence or continue if a
criminal prosecution has commenced.
Clause 154(4) states that disciplinary action cannot be imposed upon a detainee if the
detainee has been convicted or found guilty of a criminal offence relating to the same
behaviour, incident or act. If a criminal prosecution acquits a detainee on a criminal
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charge, a disciplinary process may begin or continue for the same behaviour, incident
or act (following Campbell above).
This clause foreshadows the decisions available to corrections officers, investigators,
administrators and the adjudicator to refer matters to the police or the Director of
Public Prosecutions.
Part 10.2 -- Disciplinary investigations
Division 10.2.1 -- Investigation of disciplinary breaches
Clause 155 -- Report etc by corrections officer
Clause 155 contains two powers: one power for the correction officer to take
immediate, informal action that does not involve a sanction; and a second power to
report an alleged breach of discipline to an investigating officer.
Alexander Maconochie Centre Functional Brief, states that:
The Operating Model of the Centre will be located on a continuum from indirect
supervision to direct supervision. The major features of the former are a heavy reliance
on distant electronic surveillance and the confinement of officers to secure stations. In
contrast, the direct supervision model of the AMC is based on extensive staff (as role
models) and prisoner contact, the development of positive relationships with attendant
improved surveillance and security and institutional "climate". [2005, page 9]
Clause 155(2)(a) to (c) empowers corrections officers to speak to detainees about
behaviour that is unacceptable. The corrections officer can do this in the form of
counselling the detainee, warning the detainee or reprimanding the detainee.
This power enables corrections officers to deal with incidents as they happen without
having to resort to a formal disciplinary process for every infraction.
Clause 155(2)(d) and (e) authorise corrections officers to report breaches of discipline
and segregate detainees when an alleged breach occurs that warrants more than a
serious discussion.
If a corrections officer has reported a detainee for a breach, clause 155(3) sets out
what the report must contain, including any segregation directed by the corrections
officer. This provides the investigating officer with a starting point and alerts the
investigating officer to the fact that detainees have been segregated for the purpose of
investigating a breach.
Clause 156 -- Report etc by investigator
The powers in clause 156 are triggered if an investigator is given a report about an
alleged breach.
Clause 156(2) empowers the investigator to investigate the breach having considered
the original report. Once the investigating officer has done this the officer can (a) do
nothing, (b), (c), (d) discuss the behaviour with the detainee in the form of
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counselling, warning or reprimand, (e) refer the matter to the police, or (f) and (g)
order the detainee to be segregated and report the alleged breach to the administrator.
It should be noted that the investigator is not obliged to segregate detainees.
If an investigator officer decides to report a detainee for a breach, clause 156(3)
requires the investigator to provide a report to the administrator, and details of any
segregation directed by the investigator. Likewise, the investigator must tell the
administrator of any referral to the chief police officer.
Clause 156(5) prohibits a corrections officer being the same officer who reports a
breach and investigates a breach: these tasks must be done by different officers in
relation to the incident in question.
Clause 157 -- Action by administrator
If an administrator receives a report of a disciplinary breach from an investigator, the
administrator may exercise the powers set out in this clause.
Clause 157(2) empowers the administrator to conduct further investigations around
the breach having considered the investigator's report. Once satisfied with the
information gathered, the administrator can (a) do nothing, (b), (c), (d) discuss the
behaviour with the detainee in the form of counselling, warning or reprimand,
(e) refer the matter to the police or the Director of Public Prosecutions, or (f) and
(g) charge the detainee with a breach and order the detainee to be segregated.
It should be noted that the administrator is not obliged to segregate detainees.
Clause 157(3) clarifies that referrals to the police or prosecutors must be in writing
and include the investigator's report.
Clause 157(4) prohibits a corrections officer from exercising two or more roles in the
disciplinary process: these tasks must be done by different officers in relation to the
incident in question. For example, for one incident the person exercising the
administrator's powers cannot also be the same person who investigated the alleged
breach.
Clause 158 -- Disciplinary charge
Clause 158 stipulates that a detainee must be informed in writing of a disciplinary
breach. The administrator must include the actual charge; a statement of the conduct
that gave rise to the charge; the option of accepting the charge and consenting to a
sanction proposed by the administrator in relation to the charge; and listing the
sanction the administrator considers appropriate to account for the breach.
The obligation upon the administrator to provide a written charge with the details
listed ensures that the detainee knows what the accusation is, and the potential
sanction warranted by the breach.
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It is envisaged that the written notice would be a document that would also
incorporate a space for the detainee to elect to accept the charge and the proposed
sanction, as enabled by division 10.3.1 discussed below.
A single form setting out the charge and election to accept the charge would provide
the administrator and the detainee with a common record.
Division 10.2.2 -- Investigative segregation
An incident that raises allegations of disciplinary breaches is a time of increased risk
for further breakdown in discipline and good order. This is particularly the case if the
incident involves violence or a risk of a prisoner being charged with criminal
offences.
The Bill provides corrections officers with the power to segregate detainees to protect
anyone from reprisals, threats, intimidation or any form of physical or emotional
violence. The purpose of this power is to enable the temporary separation of detainees
during an investigation to ensure that witnesses and victims of any breach are
protected and the reliability of the investigation is upheld.
Clause 159 -- Chief executive directions -- investigative segregation
Clause 159 provides the chief executive with the power to segregate detainees for the
purposes of investigation of a disciplinary breach.
Clause 159(2) clarifies that the power of the officers reporting, investigating and
laying charges to segregate detainees is additional to the chief executive's power in
this clause.
Clause 160 -- Grounds for investigative segregation
Clause 160 sets out the grounds for investigative segregation. The power may only be
used for investigative segregation. Any power to segregate in the Bill must be used for
the purpose for which it is related.
Clause 160(2) ensures that a decision to segregate cannot be made arbitrarily.
Clause 160(3) lists the grounds that authorise a relevant officer to direct investigative
segregation. The officer must reasonably believe that segregation from one or more
detainees will prevent harm to the detainee in question, or harm inflicted by the
detainee in question; or prevent an investigation of the incident from being perverted;
or prevent further risk to the security or order of the correctional centre.
Clause 161 -- Notice of investigative segregation
Clause 161 requires relevant officers to give a detainee notice of a decision to
segregate the detainee in question. The notice must state why the decision was made,
when it starts, what triggers the finish of a segregation order and how the decision is
reviewed.
Clause 162 -- Duration of investigative segregation
Clause 162(1) obliges the chief executive to revoke a direction to segregate a detainee
if the chief executive believes the risk for investigative segregation no longer exists.
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The powers in this clause enable decisions made by a corrections officer, investigator
or administrator to be reviewed by the chief executive.
Clause 162(2) stipulates when the chief executive must review investigative
segregation decisions. The chief executive must review when asked by a detainee or
upon the chief executive's own initiative. The chief executive must review prior to
any transfer to another ACT correctional centre. The chief executive must review at
least once every seven days.
The chief executive may continue the direction, make a further direction or revoke the
direction.
Clause 162(4) enables subsequent segregation directions to be made in relation to one
investigation. This also contemplates situations where the risk changes during an
investigation and the type of segregation may change accordingly.
Clause 162(5) limits the length of each segregation decision to 7 days. This ensures
that a decision about segregation is reviewed at least every 7 days and the risk that
informs the segregation is always considered.
Clause 162(5)(b) stipulates that a segregation decision ends once the administrator
makes a decision whether to charge the detainee or not -- unless the administrator
themself orders further investigative segregation.
Clause 163 -- Application for review of investigative segregation directions
Clause 163 enables a detainee who is subject to investigative segregation to ask an
adjudicator to review of that decision.
The application for review must be made within seven days of the notice of
segregation.
Clause 163(3) clarifies that the segregation continues during the adjudicators
deliberations, and only ceases if the adjudicator decides so.
Clause 164 -- Review of investigative segregation directions
Clause 164 empowers an adjudicator to review an investigative segregation direction
or refuse to review a direction.
Clause 164(2) stipulates that the adjudicator must use the process set out in chapter 11
to review an investigative segregation decision. The clauses authorises the Executive
to make regulations modifying the process.
Clause 164(3) empowers the adjudicator to confirm the original decision; vary the
direction; set aside the direction; or set aside the direction and make a new direction.
Clause 164(4) the adjudicator must notify the detainee of the decision in writing.
Clause 164(5) stipulates that if the adjudicator refuses to review the direction then the
adjudicator must state the reasons for doing so.
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The adjudicators decision is subject to review under the Administrative Decisions
(Judicial Review) Act 1989.
Part 10.3 -- Disciplinary action and review
Division 10.3.1 -- Disciplinary action with accused's consent
Division 10.3.1 enables a detainee to accept the disciplinary charges laid by the
administrator and the disciplinary sanctions proposed by the administrator.
Clause 165 -- Meaning of presiding officer for division 10.3.1
The term `presiding officer' is used in this division and division 10.3.2. Although the
term is the same, the powers allocated are those set out in each division. So the
`presiding officer' in this division is the person who is delegated to exercise the
powers in clause 167.
It should be noted that a person can be a presiding officer for both this division and
division 10.3.2.
Clause 166 -- Disciplinary breach admitted by accused
Clause 166 enables an accused detainee to accept a disciplinary charge laid by an
administrator and to accept the disciplinary action proposed by the administrator as
the sanction for the charge.
Division 10.3.5 stipulates what disciplinary action may be taken.
Clause 166(1) also contemplates a written notice of charges and proposed sanction
that would also incorporate a space for the detainee to elect to accept the charge and
the proposed sanction. This form would provide a common record for both the
administrator and the detainee.
Clause 166(2) requires the detainee to make the election within 48 hours of receiving
the notice of charges. So if the detainee receives the notice of charges on Tuesday, the
detainee must make the election and return the form to the administrator by the end of
Wednesday.
However, 166(2)(b) and 166(3) enables the time for election to be extended if the
administrator believes it reasonable to do so, whether the detainee requests it or not.
Any decision to extend the time for election must be notified.
Clause 167 -- Presiding officer's powers -- breach admitted by accused
Clause 167 sets out the presiding officer's powers if a detainee has accepted
disciplinary charges and the corresponding sanction.
The presiding officer can exercise any action under division 10.3.5. This means the
presiding officer may counsel the detainee, or direct the detainee to make reparation.
In relation to sanctions, the presiding officer may only impose the administrative
penalty that was written along with the original charge.
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The detainee must be informed in writing of the imposition of disciplinary action that
is to be taken against the detainee.
Division 10.3.2 -- Internal disciplinary inquiry
Clause 168 -- Meaning of presiding officer for division 10.3.2
The term `presiding officer' is used in this division and division 10.3.1. Although the
term is the same, the powers allocated are those set out in each division. So the
`presiding officer' in this division is the person who is assigned to exercise the powers
in clauses 169 and 170.
It should be noted that a person can be a presiding officer for both this division and
division 10.3.1.
Clause 169 -- Disciplinary inquiry into charge
If a detainee has been notified of a disciplinary charge and has not elected to accept
the charge and corresponding sanction, the clause empowers the presiding officer to
conduct an inquiry.
Clause 169(2) obliges the presiding officer to conduct an inquiry into disciplinary
charges.
Clause 169(3) prohibits a corrections officer from exercising two or more roles in the
disciplinary process: these tasks must be done by different officers in relation to the
incident in question. For example, for one incident the person exercising the
administrator's powers cannot also be the same person who investigated the alleged
breach. Alternatively, for one incident the presiding officer cannot also be the same
officer who laid the charges.
The inquiry process in chapter 11 must be used by the presiding officer to conduct
inquiries.
Clause 170 -- Presiding officer's powers after internal inquiry
Clause 170 empowers the presiding officer to impose disciplinary action if an inquiry
into a charge is complete.
Clause 170(2) authorises the presiding officer to determine whether charges are
proven or not proven on the balance of probabilities. If the charges are proven, then
the presiding officer may impose disciplinary action set out in division 10.3.5.
The balance of probabilities is a standard of proof associated with civil and
administrative proceedings. This standard has a lower threshold than the criminal
standard of beyond reasonable doubt. Proving a fact on the standard of the balance of
probabilities means that the existence of the fact is more probable than not, or the fact
is established by a preponderance of probability.
Clause 170(3) stipulates that the presiding officer must dismiss the charge if the
evidence does not prove the detainee committed a breach on the basis of the balance
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of probabilities. Alternatively, if there are other reasonable grounds to dismiss the
charge, and it would be appropriate to do so, the presiding officer must dismiss the
charges.
Clause 170(4) enables the presiding officer to refer a matter to the chief police officer
or the director of public prosecutions if the presiding officer believes that the evidence
revealed at an inquiry warrants criminal proceedings.
The detainee must be informed in writing of the presiding officer's decision to impose
disciplinary action or the decision to refer the matter to criminal justice agencies. The
notice must include reasons for the decision and information about the availability of
a review of the decision.
Division 10.3.3 -- Internal review of inquiry decision
This division enables a detainee to seek an internal review of a disciplinary decision.
Clause 171 -- Meaning of review officer for division 10.3.3
The term `review officer' in used in this division exclusively. The `review officer' is
the person assigned to exercise the powers in clauses 174 and 175.
Clause 172 -- Application for review of inquiry decision
Clause 172 allows a detainee who has had charges proven by a presiding officer in
division 10.3.2 to apply for a review of the decision to the chief executive -- or a
delegate of the chief executive.
It is envisaged that any form used for the notification of the presiding officer's
decision in clause 170 could also contain a part which the detainee could use to apply
for a review.
Clause 172(2) stipulates that the application must be made within 7 days after the
detainee is notified by the presiding officer of any disciplinary action in clause 170.
Clause 172(3) clarifies that the disciplinary action determined by the presiding officer
continues during the review of the decision, and only ceases if the review officer
decides so.
Clause 173 -- Chief executive to assign review officer
Clause 173(1) empowers the chief executive to assign one review officer, to two or
more review officers, to review a disciplinary decision. This provides the chief
executive with the flexibility to assign an appropriate number of officers
commensurate with the gravity of the review in question.
Clause 173(2) prohibits a corrections officer from exercising two or more roles in the
disciplinary process: these tasks must be done by different officers in relation to the
incident in question. For example, for one incident the person exercising the
administrator's powers cannot also be the same person who reviews a presiding
officer's decision.
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Clause 174 -- Review of inquiry decision
The review officer must conduct an inquiry when reviewing a presiding officer's
decision. The review officer must use the procedures in chapter 11 of the Bill,
discussed below.
Clause 175 -- Review officer's powers after further inquiry
Clause 175 empowers the review officer to confirm the original decision; vary the
direction; or set aside the decision and make a new decision.
In this sense, the review officer is authorised to act as if they were the presiding
officer. The presiding officer is authorised to determine whether charges are proven or
not proven on the balance of probabilities. And, if the charges are proven, then the
presiding officer may impose disciplinary action set out in division 10.3.5.
The detainee must be informed in writing of the review officers' decision following
the review. The notice must include reasons for the decision and information about
the availability of a review of the decision.
Division 10.3.4 -- External review of inquiry decision
Division 10.3.4 provides for the creation of an independent authority to review
particular decisions that would be authorised by the Bill.
Being a small jurisdiction the ACT is not in a position to establish a whole new entity
to review disciplinary decisions or segregation decisions. However, the government is
of the view that an independent authority, particularly with judicial experience,
provides a greater protection against arbitrary and unlawful decisions. To achieve this
goal the government chose to create the function of `adjudicator', which will be
fulfilled by magistrates appointed from the ACT Magistrates Court.
Adjudicators will have the authority to review disciplinary decisions and segregation
decisions on their merits and, if necessary, substitute those decisions with their own.
Magistrates acting in the capacity of adjudicators are conferred powers by the Bill as a
designated person. Following the cases of Drake v Minister for Immigration and
Ethnic Affairs (1979) 24 ALR 577 and Hilton v Wells [1985] 157 CLR 57, the
arrangement in the Bill does not confer Executive functions upon the Magistrates
Court but authorises appointees, who are also magistrates, to perform the
quasi-judicial functions set out in the Bill.
Decisions made by adjudicators will be subject to judicial review under the
Administrative Decisions (Judicial Review) Act 1989.
Clause 176 -- Appointment of adjudicator
Clause 176 empowers the Minister to appoint adjudicators. Nominees for appointment
must be magistrates. The Legislation Act 2001 defines magistrate as a Magistrate
under the Magistrates Court Act 1930.
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Given ACT Magistrates already have standing in relation to the authority of the
Legislative Assembly, the provisions of the Legislation Act 2001 requiring
consultation with the Assembly are set aside.
Clause 177 -- Application for review by adjudicator
Clause 177 allows a detainee, who has had charges proven by a presiding officer in
division 10.3.2 and the decision reviewed by a review officer in division 10.3.3, to
apply to the adjudicator for an external review of the decision.
It is envisaged that any form used for the notification of the reviewing officer's
decision in clause 157 could also contain a part which the detainee could use to apply
for a review by the adjudicator.
Clause 177(2) stipulates that the application must be made within 7 days after the
detainee is notified by the reviewing officer of any disciplinary action in clause 175.
Clause 177(3) clarifies that the disciplinary action affirmed, or decided by the
reviewing officer continues during the adjudicator's review of the decision, and only
ceases if the adjudicator decides so.
Clause 178 -- Review by adjudicator
Clause 178 empowers an adjudicator to review a disciplinary decision or refuse to
review the decision.
The adjudicator must use the process set out in chapter 11 to review a disciplinary
decision.
Clause 178(2) requires the adjudicator to inform the detainee in writing if the
adjudicator refuses to review the disciplinary decision and set out the reasons why the
application was refused. The notice must include information about the detainee's
right to seek judicial review of the adjudicator's decision.
Decisions made by adjudicators will be subject to judicial review under the
Administrative Decisions (Judicial Review) Act 1989.
Clause 179 -- Adjudicator's powers after review
Clause 179 empowers the adjudicator to confirm the decision; vary the direction; or
set aside the decision and make a new decision.
In this sense, the adjudicator is authorised to act as if they were the presiding officer.
The presiding officer is authorised to determine whether charges are proven or not
proven on the balance of probabilities. And, if the charges are proven, the presiding
officer may impose disciplinary action set out in division 10.3.5.
The detainee must be informed in writing of the adjudicators' decision following the
review. The notice must include reasons for the decision and information about the
detainee's right to seek judicial review of the adjudicator's decision.
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Decisions made by adjudicators will be subject to judicial review under the
Administrative Decisions (Judicial Review) Act 1989.
Division 10.3.5 -- Disciplinary action
This division provides the action that can be taken if a disciplinary charge is proven.
The action includes a series of penalties. The government considers these penalties to
be consistent with the administrative nature of the discipline process and are
consistent with current human rights jurisprudence.
Clause 180 -- Application
Clause 180 clarifies that disciplinary action only applies to detainees who were
charged with a disciplinary breach and the charge was proven.
Clause 181 -- Definitions for division 10.3.5
Clause 181 ensures that all of the decision-makers in the disciplinary process who can
impose sanctions are contemplated by this part. The definition labels any presiding
officer, review officer or adjudicator as the `relevant presiding officer'.
Clause 182 -- Disciplinary action by relevant presiding officer
Any officer who has the authority to impose disciplinary action may take any of the
actions in (a) to (d), or any combination of actions in (a) to (d).
If the breach does not warrant a penalty, the officer may simply warn or reprimand the
detainee by way of (a) and (b).
The officer may also impose any administrative penalty or combination of penalties
by way of (c) and clause 183 discussed below.
The officer may also direct the detainee to make reparation, by way of (d) and
clause 184 discussed below.
Clause 182(2) requires the officer to exercise disciplinary action proportionately. This
invokes the human rights concept of proportionality in relation to discipline.
Proportionality requires that the exercise must be: necessary and rationally connected
to the objective; the least restrictive in order to accomplish the object; and not have a
disproportionately severe effect on the person to whom it applies.
The chief executive must make a corrections policy that sets out the factors that must
be taken into account by the presiding officer when assessing the proportionality of a
penalty.
Clause 183 -- Administrative penalties
Clause 183 lists the penalties that can be imposed upon a detainee who has proven to
have breached discipline.
The maximum fine that can be imposed is $500 as the majority of prisoners will not
be in a position to earn, or retain, large sums of money.
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Chapter six draws a line between the minimum conditions that are regarded as
entitlements and conditions that may be considered to be privileges. The first note in
chapter six explains that any withdrawal of privileges as a consequence of disciplinary
action does not affect any entitlement set out under chapter six. Conversely, any
condition in chapter six that is not prescribed to be an entitlement can be regarded as a
privilege.
A `privilege' is defined in clause 153 as any benefit a detainee may have, material or
otherwise, beyond the minimum entitlements set out in chapter 6.
Clause 183(b) enables the withdrawal of privileges for up to 180 days.
As discussed above, the Executive would be authorised to make regulations about
work that may be done by detainees at correctional centres. It is envisaged that
detainees would be assigned tasks within correctional centres and that some prisoners
would engage in community service while under guard.
Clause 183(c) authorises the relevant presiding officer to assign the detainee with
extra work duties as an administrative penalty. The assignment of extra work must be
consistent with the minimum conditions in chapter 6.
Clause 183(d) enables separate confinement of 3 days, 7 days or 28 days. The intent
of having three measures of separate confinement is to simplify the association of the
seriousness of the breach with the penalty. Rather than creating a situation where
there may be detailed argument between what breach would warrant 7 days or 8 days,
the three fixed measures aim to abbreviate the match between the seriousness of the
breach and the penalty warranted.
Clause 183(e) authorises the Executive to make regulations that would create further
administrative penalties.
Clause 184 -- Reparation
Clause 184 enables a relevant presiding officer to direct that reparation should be
made if a disciplinary breach is proven and a person suffered a loss as a consequence
of the incident. Reparation does not have to be money.
Clause 184(3) limits the reparation that can be directed to a maximum of $100.
However, clause 184(3)(b) authorises the Executive to make a regulation that would
increase this amount. The limit is set at $100 given the fact that prisoners would not
be in a position to earn, or retain, large sums of money as part of their prison account.
Clause 184(4) authorises any reparation to be deduced from the detainee's trust
account, discussed at clause 83.
Clause 184(5) clarifies that the clause uses the term `loss' from the Criminal
Code 2002, section 300:
loss means a loss in property, whether temporary or permanent, and
includes not getting what one might get.
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The meaning of loss is extended to include out of pocket or other expenses.
Clause 185 -- Maximum administrative penalties
Clause 185 sets a limit on the maximum penalties that can be imposed for one
incident. If the same conduct leads to two or more charges being proven, the relevant
presiding officer cannot impose a penalty beyond the maximum that can be imposed
for one breach.
For example, for three charges proven based upon the same conduct a presiding
officer cannot impose three sets of withdrawal of privileges of 120 days each. This
would amount to a loss of privileges for 360 days, twice the amount permitted under
183(b).
Conversely, for three charges proven based upon the same conduct a presiding officer
could impose three sets of withdrawal of privileges of 60 days each. This would
amount to a loss of privileges for 180 days, the maximum permitted under 183(b).
Clause 185 -- Separate confinement conditions
Separate confinement is not solitary confinement. Solitary confinement is the
complete isolation from other people and may be compounded by forms of sensory
deprivation imposed, such as reduced light or visibility.
Separate confinement will involve the detainee being moved to a separate disciplinary
cell. Although the detainee will sleep alone in the cell and separated from the prison
population the detainee will not be isolated from people. The detainee will have
regular visits, and normal interaction with corrections officers and other prison staff.
The minimum conditions, including phone calls, mail, access to daylight and exercise
etc, set out in chapter 6 will still apply.
Clause 186(2) obliges the chief executive to organise a medical examination of a
detainee in separate confinement as soon as the confinement commences or finishes.
A corrections officer must also be assigned to monitor the condition of the detainee
daily.
Clause 187 -- Privileges and entitlements -- impact of discipline
Clause 187 ensures that investigative segregation and disciplinary action do not oust
any minimum condition set out in chapter 6.
Chapter 6 draws a line between the minimum conditions that are regarded as
entitlements and conditions that may be considered to be privileges. The first note in
chapter 6 explains that any withdrawal of privileges as a consequence of disciplinary
action does not affect any entitlement set out under chapter six. Conversely, any
condition in chapter six that is not prescribed to be an entitlement can be regarded as a
privilege.
A `privilege' is defined in clause 153 as any benefit a detainee may have, material or
otherwise, beyond the minimum entitlements set out in chapter 6.
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Clause 188 -- Record of disciplinary action
Clause 188 obliges the chief executive to keep a record of disciplinary action taken
against a detainee.
The record must include: the detainee's name; the breach in question; a statement
about the conduct giving rise to the breach and when it happened; and the action taken
when the breach was proven.
Clause 188(2)(e) authorises the Executive to make regulations listing further matters
that must be recorded following disciplinary action.
Clause 188(3) contemplates a charge proven but no disciplinary action taken. This
provision ensures that a record is made of a charge proven.
Clause 188(4) enables inspection of these records by the officials authorised to inspect
corrections facilities in chapter 7 above.
Chapter 11 -- Conduct of disciplinary inquiries
As discussed at the beginning of chapter ten above, the late 1970s saw a change in
how courts regarded judicial review of disciplinary proceedings. Following R v Board
of Visitors of Hull Prison; ex parte St Germain (No.1) [1979] QB 425, courts
considered prison disciplinary procedures as administrative decisions that could be
reviewed for lawfulness by a court with appropriate jurisdiction.
That change obliged corrections authorities to apply administrative law principles to
disciplinary proceedings, and conversely required disciplinary proceedings to be
judicially reviewed for appropriate standards. Consequently, the disciplinary
proceedings fall within the ambit of administrative decisions that require procedural
fairness.
It is now orthodox for Australian courts to review disciplinary proceedings on the
basis of a breach of procedural fairness, namely the right to a fair hearing, the right to
an unbiased hearing and a decision based on logically probative material. For
examples Henderson v Beltracchi & ors (1999) 105 A Crim R 578 and Kuczynski v R
(1994) 72 A Crim R 568.
Given this history, it is important that the discipline process assists procedural
fairness. Chapter 11 intends to provide for a procedure which is fair and prompt.
While the process in chapter 11 is envisaged to be used predominantly for disciplinary
purposes, the process is also suitable for inquiries and hearings conducted to review
other prescribed decisions in this Bill. Review of segregation in chapter nine and
review of disciplinary segregation in division 10.2.2 also use the inquiry and hearing
procedures in chapter 11.
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Part 11.1 -- Conduct of disciplinary inquiries -- general
Clause 189 -- Application of chapter 11
Clause 189 clarifies that the chapter applies to inquiries mentioned in the divisions
listed.
Clause 190 -- Meaning of presiding officer
Clause 190 provides a short-hand definition for all of the decision-makers in the
disciplinary process who can impose sanctions. The definition labels any presiding
officer, review officer or adjudicator as the `presiding officer'.
Part 11.2 -- Disciplinary inquiry procedures
Clause 191 -- Nature of disciplinary inquiries
Clause 191(1) explicitly stipulates that disciplinary inquiries are administrative
procedures.
Clause 191(2)(a) affirms that the common law principle of natural justice applies.
Clause 191(2)(b) clarifies that being a quasi-judicial process, but not a judicial
process, the statute law and common law on evidence relevant to court hearings do
not apply to these proceedings. It should be noted, however, that consistent with the
principles of natural justice, a decision cannot be based upon no evidence, nor
speculation or suspicion: there must be logically probative material informing the
decision.
Akin to the above sub-clause, clause 191(2)(c) clarifies that the procedure for
deciding if a disciplinary breach has occurred is not a court proceeding. Consequently,
evidence on oath or affidavit is not appropriate.
Clause 191(2)(d) stipulates that when deciding if a charge is proven, or not proven,
the relevant officer must apply a standard of balance of probabilities. The balance of
probabilities is a standard of proof associated with civil and administrative
proceedings. This standard has a lower threshold than the criminal standard of beyond
reasonable doubt. Proving a fact on the standard of the balance of probabilities means
that the existence of the fact is more probable than not, or the fact is established by a
preponderance of probability.
Clause 192 -- Application of Criminal Code chapter 7
Clause 192 clarifies that the proceedings to determine disciplinary breaches are not
interpreted to be legal proceedings for the purposes of the offences set out in chapter 7
of the Criminal Code 2002.
Clause 193 -- Notice of disciplinary inquiry etc
Clause 193 requires that a presiding officer notify a detainee of an inquiry. The
detainee should already be informed of charges laid, and already have had the
opportunity to elect to consent to the charges as a consequence of division 10.3.1
above.
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Clause 193(2) lists the matters that must be in the notice.
Clause 193(3) enables the detainee to make submissions to the presiding officer for
the inquiry.
Clause 193(4) obliges the presiding officer to consider submissions made by the
detainee prior to any deadline set in the notice of the inquiry.
Clause 194 -- Conduct of disciplinary inquiries
Clause 194 allows inquiries to be conducted prudently and expediently. The provision
enables the procedure to be exercised in a manner commensurate to the
circumstances.
Clause 194(2) enables the presiding officer to hold a hearing if natural justice should
be served. 194(3) requires the procedure in part 11.3 to be used for hearings. In some
cases a hearing may be unnecessary if, for example, the detainee makes a submission
to the effect that they concede the breach.
Clause 194(4) stipulates that inquiries are not open to the public unless the presiding
officer decides positively that the inquiry should be open.
Clause 194(5) ensures that a decision is not rendered inoperable because of a lack of
form rather than substance. For example, if a notice in clause 193 does not have a
deadline for submissions, yet a submission is made, any decision made as a
consequence is not invalid. However, if no notice was given at all and the detainee
had no opportunity to make submissions, this would be a matter of substance and the
decision may be invalid.
Clause 195 -- Presiding officer may require official reports
Clause 195 authorises the presiding officer to seek reports from the chief executive,
the NSW corrections authority, the Director of Public Prosecutions, another
corrections officer or a public servant of the ACT. The person asked for a report must
provide a report.
Clause 196 -- Presiding officer may require information and documents
Clause 196 authorises the presiding officer to seek information from people with a
relevant connection to the alleged disciplinary breach being decided.
The clause enables the presiding officer to ask for particular information or particular
documents.
Clause 196(2) provides an exception to the provision of information or documents if
the Minister certifies that disclosing the document or information may endanger
someone or is not in the public interest.
The power in clause 196 does not oust a person's privilege against self-incrimination
nor exposure to civil penalty. The clause also retains client legal privilege.
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Clause 197 -- Possession of inquiry documents etc
Clause 197 enables the presiding officer to have possession of documents, or other
things obtained, for the duration of the inquiry. However, the presiding officer may
return the documents, or things, prior to the completion of the inquiry.
Clause 198 -- Record of inquiry
The presiding officer is obliged to keep a record of the inquiry.
Part 11.3 -- Disciplinary hearing procedures
Clause 199 -- Notice of disciplinary hearing
Clause 199 requires the presiding officer to notify the accused detainee of a hearing
and the chief executive. The detainee should already be informed of charges laid, and
already have had the opportunity to elect to consent to the charges as a consequence
of division 10.3.1 above.
Clause 199(2) stipulates that the notice must say when and where the hearing will take
place and state the detainee's rights and obligations in clauses 200 and 201.
Clause 199(3) clarifies that the hearing may be held at a correctional centre. It is
envisaged that most hearings will take place at the correctional centre where the
detainee is detained.
Clause 200 -- Appearance at disciplinary hearing
Clause 200(1) entitles the detainee accused of breaching discipline to be present at the
hearing.
Clause 200(2) authorises the presiding officer to direct witnesses to attend the hearing
to answer questions or produce relevant documents or things for the hearing.
Clause 200(3) clarifies that compliance with providing documents or other things is
achieved if they are provided before the deadline in the notice issued by the presiding
officer.
Clause 200(4) provides the presiding officer with explicit authority to require an
accused detainee or a witness to answer questions, produce documents, or produce
other things.
Clause 200(5) enables the presiding officer to disallow questions that are unfair,
prejudicial, vexatious or are an attempt to abuse the inquiry procedure.
Clause 200(6) gives the presiding officer the power to allow corrections officers and
other people to be heard at a hearing.
The power in clause 200 does not oust a person's privilege against self-incrimination
nor exposure to civil penalty. The clause also retains client legal privilege.
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Clause 201 -- Rights of accused at disciplinary hearing
Clause 201(1)(a) establishes a detainee's right to be heard, to examine witnesses, to
cross-examine witnesses and to make submissions to an inquiry.
As discussed above, a disciplinary hearing is an administrative process not a judicial
process. Consequently, clause 201(1)(b) establishes that a detainee does not have a
right to legal representation at a disciplinary hearing. However, legal representation
may be permitted by the presiding officer.
Clause 201(2) lists the matters that must be considered by a presiding officer if a
detainee asks for legal representation.
Clause 201(3) empowers the presiding officer to exclude a detainee from a hearing if
the detainee is disruptive or contravenes a direction made by the presiding officer.
Clause 201(4) clarifies that the detainee's presence is not inherently required for the
presiding officer to determine if a charge is proven. However, this sub-clause does not
set aside the presiding officer's obligation to see that natural justice is applied. The
presiding officer should consider why the detainee failed to attend and consider
whether making a decision in the detainee's absence would not offend natural justice.
For example, if the detainee's refused to attend, the detainee may have waived their
detainee's right to question witnesses etc. However, if the detainee was physically
unable to attend due to circumstances out of the detainee's control, the presiding
officer may consider whether a hearing should be re-convened.
Clause 202 -- Appearance at disciplinary hearing by audiovisual or audio link
Clause 202 enables the use of technology to conduct hearings. This clause enables
appearances by relevant parties and witnesses to take place via audiovisual or audio
links. The individuals do not have to be physically before the presiding officer.
The clause draws upon relevant provisions of the Evidence (Miscellaneous
Provisions) Act 1991. A presiding officer will be authorised to draw upon these
powers by a consequential amendment to the Evidence (Miscellaneous Provisions)
Act 1991 including the presiding officer as a quasi-judicial entity.
Chapter 12 -- Full-time detainees -- leave
Part 12.1 -- Local leave
Clause 203 -- Local leave directions
Clause 203 enables the chief executive to direct a detainee to leave a centre for a
relevant, official purpose.
A chief executive may issue a permit to notify any relevant officers of the chief
executive's decision.
Clause 203(2) empowers the Executive to make regulations that are conditions on
leave directed by the chief executive.
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In making decision under this power, the chief executive may also set condition upon
the leave.
Clause 204 -- Local leave permits
Clause 204 authorises the chief executive to allow a detainee to leave a correctional
centre for a relevant purpose.
Clause 204(2) requires the permit to state the purpose of the leave. Leave cannot be
granted for longer than seven days. The permit must state the period of the leave
approved.
Clause 204(3) empowers the Executive to make regulations that are conditions on
leave authorised by the chief executive.
In making decision under this power, the chief executive may also set conditions upon
the leave.
Part 12.2 -- Interstate leave
Part 8.2 remakes existing provisions for interstate leave currently provided by the
Prisoners Interstate Leave Act 1997.
Part 12.2.1 -- General
Clause 205 -- Definitions for part 12.2
Clause 205 provides definitions used for this part.
Clause 206 -- Declaration of corresponding leave laws
Clause 206 enables the Minister to declare the law of another State or Territory to be a
corresponding leave law. In this way this Bill will recognise the laws that
substantially give effect to the same purpose as this part of the Bill. Likewise, States
or Territories that declare the Bill to be corresponding will recognise the substance of
this Bill.
A declaration must be notified on the Legislation Register.
Division 12.2.2 -- ACT Permits for interstate leave
Clause 207 -- Interstate leave permits
Clause 207 authorises the chief executive to grant a detainee leave to travel to a State
or Territory with a corresponding law and stay in that State or Territory.
A permit issued under this power must include the destination state, the purpose of the
leave and the period of leave approved. Interstate leave is limited to less than 7 days.
Clause 207(3) qualifies the authority to grant leave. If a detainee has a high security
classification the leave may only granted on the grounds of health or compassion. The
chief executive may also grant a permit in this case if the chief executive determines it
is appropriate.
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Clause 207(4) empowers the Executive to make regulations that are conditions on
leave authorised by the chief executive.
In making decision under this power, the chief executive may also set conditions upon
the leave.
Clause 208 -- Effect of ACT permit for interstate leave
Clause 208 stipulates that a prisoner with a leave permit is authorised to leave a
correctional centre, escorted or unescorted.
If an escort is required as a condition of the leave, the escort is authorised to carry out
their duty in the relevant State.
Clause 209 -- Notice to participating States
Clause 209 requires the chief executive to give relevant officers notice that the
prisoner is authorised to travel to their State, or through their state.
Clause 210 -- Powers of escort officers
Clause 210 empowers an escort officer to give the prisoner on interstate leave
directions and to use force, when necessary, to prevent escape.
Clause 210(2) also authorises an escort officer to conduct a scanning, frisk or ordinary
search of the detainee. These searches are defined at clause 106, discussed above.
Consequently, parts 9.4 dealing with searches and part 9.5 dealing with the seizing of
property also apply.
Clause 211 -- Liability for damage etc
Clause 211(1) clarifies that the ACT is liable for damage or loss caused by a Territory
detainee on leave in another State or Territory.
Clause 211(2) clarifies that the Territory retains the right of an action against an escort
officer or detainee if warranted.
Part 12.2.3 -- Interstate leave under corresponding leave laws
This part enables detainees and escorts from other States and Territories to visit the
ACT or travel through the ACT. The authority to do so is dependent upon the other
State being recognised as corresponding law, and a permit for leave issued by that
State.
Clause 212 -- Effect in ACT of interstate leave permit under corresponding
leave law
Clause 212 authorises interstate escort officers to carry out their duties in the ACT
while escorting an interstate detainee in the ACT.
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Clause 213 -- Powers of interstate escort officers
Clause 213 authorises interstate escort officers to use force to keep the detainee on
leave in their custody, or to arrest the detainee on leave who is unlawfully out of
custody.
The use of force is only permitted if the home jurisdiction of the officer also permits
the use of force.
Clause 214 -- Escape of interstate detainee
Clause 214 authorises the arrest without warrant of an interstate detainee unlawfully
out of custody by an ACT police officer or the detainee's interstate escort officer.
Clause 214(3) enables an arresting police officer to pass the interstate detainee into
the custody of the interstate escort officer.
Clause 215 -- Return of escaped interstate detainee
Clause 215 contemplates what can happen after an escape or an attempted escape. The
interstate detainee can be taken before a Magistrate to over-ride the interstate leave
permit.
The Magistrate can issue a return warrant and to order the return of the interstate
detainee and to have the police or the interstate officer hold the detainee in custody.
The Territory can hold the detainee for 14 days to facilitate the return of the interstate
detainee to their home jurisdiction.
Chapter 13 -- Miscellaneous
Clause 216 -- Lawful temporary absence from correctional centre
Clause 216 clarifies that any detainee who is lawfully absent from a correctional
centre is still in the legal custody of the chief executive. If the detainee is being
escorted by the escort officer the detainee is also in the custody of the escort.
Clause 217 -- Detainee's work -- no employment contract
In Pullen v Prison Commissioners [1957] 3 All ER 470, Lord Goddard, Chief Justice
of the Queen's Bench Court of the United Kingdom, determined that a prison
workshop was not a factory for the purposes of the Factories Act 1937. The Factories
Act 1937 was an antecedent to modern workers compensation legislation.
Lord Goddard, stated that the Factories Act 1937 was designed to place obligations
upon employers of labour in factories and other places of people working under
contract and not to prisoners employed on labour as part of penal discipline.
The Chief Justice noted that the relationship was not an employment relationship.
Prisoners were obliged to work as a consequence of their sentence. A prison was also
not a workplace for people imprisoned there.
Morgan v Attorney-General [1965] NZLR 134 followed Pullen. The plaintiff was a
prisoner who requested work outside of the prison and was injured while working on
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a Sunday. Prisoners were not compelled to work on a Sunday but were permitted to
do so and were paid prison wages. The court found Morgan not to be an employee of
the prisons department.
In Zappia v Department of Correctional Services (SA) (1993) WCATR 30, the
Workers Compensation Appeal Tribunal said:
In our respectful view . . . the fact that the prisoner is consulted as to the type of work
he is to do, is requested to do work rather than directed to do so and that prison
authorities may not choose to use the range of disciplinary powers available in the
event of a refusal to work does not alter the position that as a matter of law a prisoner is
required to work and is subject to punishment if he refuses to do so. By operation of
law a refusal to carry out an assigned task or its wilful or careless mismanagement by a
prisoner may result in the punishments we have outlined earlier. The reasoned and
more sensitive approach taken by prison management in order to get the prisoner
working cannot alter the underlying legal requirements and convert the arrangements
made between prison management and prisoners into a contract of service.
The line of these cases was followed by Campbell CJ in Helmers v Dept of Corrective
Services (1997) 14 NSWCCR 256 and Calin v Dept of Corrective Services (1997) 14
NSWCCR 559 involving an unconvicted detainee.
Clause 217 is an affirmation of the common law that a detainee working in, or for, a
correctional centre, is not in a contract of employment or a contract for services in
what ever form.
Clause 218 -- Detainee's work -- occupational health and safety
Clause 218 obliges the chief executive to comply with the Occupational Health and
Safety Act 1989 where a detainee is carrying out work.
The clause requires the chief executive to protect the health and safety of detainees
engaged in work and others near any workplace.
Clause 218(3) authorises the Executive to make regulations that invoke the specific
application of parts of the Occupational Health and Safety Act 1989 to detainees and
to modify the application.
Clause 219 -- Personal injury management -- detainee's etc
Clause 219 provides a means to manage any injuries sustained by detainees in the
course of detention, and if necessary compensate detainees for permanent injury and
their families for death.
Clause 219(1) enables the scheme to apply to detainees or other offenders directed to
do community service work.
Clause 219(2) authorises the Executive to make regulations to manage injuries, enable
vocational rehabilitation where necessary, establish a system for compensation for a
permanent injury, and payments of death benefits.
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It is envisaged that the scheme will set out scheduled amounts for levels of permanent
impairment endured by injured detainees and a standard payment for a death caused
by injury as a consequence of an injury arising because of detention or community
service.
Clause 220 -- Random testing of detainees -- statistical purposes
Alexander Maconochie Centre Functional Brief states that:
Illicit drugs pose one of the most serious problems in prisons. Drug use can cause death
or serious illness (through overdosing), spread blood borne viruses and diseases such as
AIDS/HIV and Hepatitis B and C (through shared use of dirty needles), react badly
with prescribed drugs, cause violent behaviour, jeopardise rehabilitation, and impact
negatively on families. [2005, page 49]
Clause 220 enables testing of randomly selected detainees for the presence of drugs or
alcohol. This power enables corrections centres to check for the presence of illicit
drugs in the centre. The power also enables the corrections service to make records of
random testing for statistical purposes and facilitate research projects.
Clause 220(2) prevents a record of the identity of the detainee from being made and
ensures that the results are only used for statistical purposes.
Clause 221 -- Confidentiality
Clause 221 ensures that any information a person has access to, because of their
employment or professional involvement, under the terms of the Bill remains
confidential. The information may only be exchanged or shared for professional
purposes.
Clause 221(2) creates an offence if a person makes a private record about confidential
information. It also creates an offence if a person divulges confidential information in
a private capacity.
Clause 221(3) clarifies that records made by a person because of their duties under the
Act, or in their professional capacity are not offences. Exchanges of information with
other criminal justice agencies, consistent with section 136 of the Crimes (Sentencing)
Act 2005 are also permitted. Any exchange or disclosure by a law enforcement agency
or any person or agency exercising another lawful function is permitted. Clause
221(3)(f) authorises the Executive to make regulations that list other entities entitled
to exchange information gleaned under the Bill.
Clause 221(4) clarifies that information may also be divulged if a detainee consents to
the sharing of the information, the chief executive authorises the divulgence, the
information is simply stating that a detainee is held in a particular correctional centre
or the divulgence is authorised by regulations.
Clause 221(5) authorises the chief executive to divulge information if it is necessary
to protect the life or safety of someone, or is in the public interest.
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Clause 222 -- Protection from liability
Clause 222 protects persons in the exercise of a function under the Act from incurring
personal liability, as long as the function was performed honestly and without
recklessness. If the function is not one under the Act, a person may still be protected if
they held a reasonable belief that the act or omission was in the exercise of a function
under the Act.
Any civil liability that would attach to a person attaches instead to the Territory.
Clause 223 -- Corrections dogs
Clause 223 authorises the Executive to make regulations about the use, training and
management of corrections dogs.
Clause 224 -- Declaration of corresponding corrections laws
Clause 224 enables the Minister to declare corresponding law for the purpose of
provisions in the Bill that contemplate, or coordinate with, the laws of other
jurisdictions.
Clause 225 -- Evidentiary certificates
Clause 225 enables the chief executive to issue an evidentiary certificate addressing
any of the matters in 225(2)(a) to (e). The certificate is taken to be evidence of the
matters stated in the certificate.
Clause 225(5) enables a certificate setting out the results of an analysis performed for
the purposes of this Bill and signed by an analyst to be taken as evidence of the
analysis and the facts drawn from the analysis. For example, the results of a drug test.
Clause 225(6) obliges a court to accept these certificates as proof of the facts stated,
unless there is contrary evidence.
Clause 225(7) creates an imperative for evidentiary certificates to be provided to
detainees affected by the evidentiary effect of the certificate.
Clause 225(8) enables the chief executive to appoint analysts for drug testing and
other relevant tasks under this Bill. The instrument of appointment is a notifiable
instrument.
Clause 226 -- Determination of fees
Clause 226 authorises the Minister to set any fees for the administration of the
foreshadowed Act. Any instrument setting a fee must be tabled at the Legislative
Assembly to allow Assembly members to consider if they wish to move a motion of
disallowance. If the declaration is allowed, it must be also be notified before
becoming enforceable.
Clause 227 -- Approved forms
Clause 227 enables the Minister to approve forms for use under the foreshadowed
Act. Once made, the approved form must be used. Any form approved must be
notified on the legislation register.
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Clause 228 -- Regulation making power
Clause 228 lists the items for which the Executive would be authorised to make
regulations.
The existence of a regulation making power does not oblige the Executive to make
regulations about the matter.
Any regulations made must be consistent with any provisions of the foreshadowed
Act. Regulations are intended to provide for more detailed rules and operation of an
Act where necessary.
As a means of expediently dealing with laws of different jurisdictions that may apply
to this Bill, such as Commonwealth law, clause 228(5) enables other laws to be
incorporated into regulations for this Bill.
Clause 228(6) authorises the Executive to impose penalties in regulations up to 20
penalty units. Penalty units are defined at section 133 of the Legislation Act 2001 and
at the time of this Bill equal $100 per unit for an individual and $500 per unit for a
corporation.
Clause 229 -- Legislation amended -- schedule 1
Clause 229 is a technical clause that flags substantial and consequential amendments
to other Territory Acts in schedule one to this Bill.
Chapter 50 -- Transitional
The transitional chapter provides rules for identifying the correct law at the relevant
time the law needs to be applied. The chapter number and the clause numbers are
inflated to facilitate simple re-numbering when the Bill or foreshadowed Act is
republished by Parliamentary Counsel.
Clause 500 -- Meaning of commencement day for chapter 50
Clause 500 provides a short-hand definition of `commencement day' for this chapter.
Commencement day means the day that chapter 50 commences by way of clause 2
discussed above.
Clause 501 -- Application of Act to transitional detainees
Clause 501 refers to the sections of the Crimes (Sentence Administration) Act 2005
that deal with transitional arrangements. These sections determine that in relation to
detention, those people detained before the commencement of the Crimes (Sentence
Administration) Act 2005 are covered by the Crimes (Sentence Administration)
Act 2005 after it commences.
Consequently, clause 501 stipulates that those detainees would also covered by this
foreshadowed Act after it commences. The result is that all detainees would be
covered by this Bill once commenced as an Act.
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Clause 502 -- Application of Act to transitional interstate leave permits
Clause 502 deems any interstate leave permits in force before this foreshadowed Act
commences to be a permit made under the terms of the foreshadowed Act. In essence,
the new Act would apply to existing leave permits.
Clause 502(4) refers to the retention of the Prisoners Interstate Leave Act 1997 via
chapter 17 of the Crimes (Sentence Administration) Act 2005. See clause 506 below.
Clause 503 -- Application of Act to certain transitional remandees
Any local release or hospital release under the Remand Centres Act 1976 is taken to
be authorised by this foreshadowed Act after commencement and the relevant new
provisions would apply.
Any complaints to the Official Visitor that are not complete before commencement
day are deemed to be complaints under the new Act.
Clause 504 -- Transitional arrangements with NSW -- Rehabilitation of
Offenders (Interim) Act 2001, s 94
Section 94 of the Rehabiltiation of Offenders (Interim) Act 2001 (ROOI Act)
authorised the Chief Minister of the ACT Government to make arrangements with the
NSW Government about the use of NSW officers in relation to ACT prisoners. This
included the provision of reports about ACT prisoners serving their sentence in NSW
gaols.
The effect of section 94 was retained by the transitional provisions in chapter 17 of
the Crimes (Sentence Administration) Act 2005.
This clause transfers any agreements made under the authority of section 94 of the
ROOI Act to the authority of clause 25 in this Bill. This transitional clause retains the
effect of any agreement in force prior to the commencement of this Act.
As the power is facilitative, the section is prescribed to expire in two years after
commencement.
Clause 504(5) refers to the retention of the ROOI Act via chapter 17 of the Crimes
(Sentence Administration) Act 2005. See clause 506 below.
Clause 505 -- Construction of outdated references
Clause 505 enables commonsense to prevail when dealing with any relevant Acts,
instruments, documents, forms etc that refer to the repealed Acts, or repealed parts of
Acts, and are to be treated as references, instruments, documents, forms etc under the
new Corrections Management Act.
For example, if the Remand Centre uses a form that refers to remand under the
Remand Centres Act 1976, this transitional provision enables the form to be used for
remand matters under this Act, as it is relevant to the subject matter.
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Alternatively, if another Act makes reference to the Remand Centres Act 1976, then
that reference can be interpreted to be a reference to the substance of the matter under
this Act.
Clause 505(3) clarifies that the transitional principle also applies to any relevant Act,
instruments, documents, forms etc that have been repealed because of the Sentencing
Legislation Amendment Act 2006.
Clause 505(4) clarifies that section 88 of the Legislation Act 2001 applies. Section 88
ensures that any transitional laws that have been made and are later repealed, can still
be used in circumstances relevant to the transitional laws.
(5) expires the section after 10 years.
Clause 505(6) lists the legislation that make up the meaning of earlier law.
Clause 506 -- Crimes (Sentence Administration) Act, ch 17 (Transitional --
interim custody arrangements) -- definition of Corrections Management
Act 2006
Chapter 17 of the Crimes (Sentence Administration) Act 2005 provides transitional
arrangements to enable existing custodial laws to apply until the Corrections
Management Act commences. The Crimes (Sentencing) Act 2005, the Crimes
(Sentence Administration) Act 2005 and the Corrections Management Bill 2006 have
been drafted using common terms, methods and connections. The three are designed
to work together and make sense of a sentence from sentencing to the completion of a
prison term.
To ensure the ACT's custodial laws continue to operate in harmony with the new
Sentencing Acts until the Corrections Management Bill 2006 is enacted, chapter 17
provides transitional methods and powers to resolve any legal conflicts should they
arise.
The transitional provisions are linked to the commencement of this Bill.
This clause stipulates that it is this Bill that is referred to in section 603 of the
transitional provisions in the Crimes (Sentence Administration) Act 2005.
Clause 506(3) clarifies that section 88 of the Legislation Act 2001 applies. Section 88
ensures that any transitional laws that have been made and are later repealed, can still
be used in circumstances relevant to the transitional laws.
(4) expires the section one year after commencement.
Clause 507 -- Transitional regulations
Clause 507 authorises the Executive to make regulations to address unforeseen
transitional matters following the commencement of the foreshadowed Act.
This power is limited to two years after commencement.
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Schedule 1 -- Amendment of other legislation
Part 1.1 -- Crimes Act 1900
This clause omits an outdated definition of corrections officer from the
Crimes Act 1900.
Part 1.2 -- Crimes (Sentencing) Act 2005
Part 1.2 remakes the pre-sentence report provisions of the Crimes (Sentencing)
Act 2005 in a simpler form.
The provisions enable the court to adjourn proceedings and order the chief executive,
of the relevant department to prepare a pre-sentence report. Part 19.4 of the
Legislation Act 2001 enables the chief executive to delegate this function as a matter
of course. References to the chief executive may be taken to include a person
delegated by the chief executive to exercise the power or carry out the function.
Section 41(2) requires the court to order presentence reports for the dispositions listed.
Periodic detention, community service and rehabilitation programs, all have eligibility
and suitability criteria that must be addressed in a report and considered by the court
before the court can proceed to impose them. In the case of rehabilitation programs,
the court is not obliged to seek a report if there is already relevant information before
the court that satisfies the court's needs.
New section 41(3) enables the court to pick the matters from the list of pre-sentence
report matters the court wishes the report to address. It also authorises the court to ask
the assessor to report on any other matter the court wishes to have addressed in the
report.
It is envisaged that a form would be developed to facilitate the order.
New section 42 requires assessors to address each pre-sentence matter requested by
the court. The section also authorises the assessor to address other matters if the
assessor forms a view that it is relevant. For example, if the assessor discovers that the
offender has a problem with drug addiction.
Section 42 makes reference to the relevant criteria for suitability for each of the
dispositions that make a presentence report mandatory.
Clauses 1.3 to 1.10
Clauses 1.3 to 1.10 provide consequential amendments as a result of clause 1.2, with
the exception of clause 1.7 which corrects a mistaken reference to (3) and replaces it
with the correct reference to (4).
Part 1.3 -- Crimes (Sentence Administration) Act 2005
Clause 1.11 recasts section 9(4) in a clearer form. The effect of the section remains
the same.
Section 9(4) requires the Crimes (Sentence Administration) Act 2005 to apply to other
detainees as being a full-time detainee. The section enables the Executive to make
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91
regulations where the law authorising the detention, and how that detention is to be
exercised, conflicts with the Act. The aim of the clause is to authorise necessary
modifications to reconcile the conflicting laws. For example, a Commonwealth law
may be more restrictive than the Act. In this instance there may be a conflict with the
Act. Generally, where an ACT law is found to be inconsistent with Commonwealth
law, Commonwealth law has the right of way. Under these circumstances the ACT
Executive may make regulations to resolve the inconsistency.
Clause 1.12 follows changes to the Magistrates Court Act 1930 and recent case law
that requires judicial functions exercised by a registrar to be delegated by a Magistrate
or Judge. Consequently, this clause simplifies section 10(2).
Clause 1.13 corrects a mistake made during the drafting of the Sentencing Legislation
Amendment Act 2006. An update to references to correctional centre accidentally
omitted the correct reference in section 36(2)(a) to a NSW correctional centre. This
clause corrects the error.
Clause 1.14 updates section 36(3)(b) by specifying that clause 93(2)(a) of this Bill
would apply to segregated detainees moved to NSW.
Clause 1.15 amends section 61(2)(e) by including Sentence Administration Board
powers to manage periodic detention. The effect of the amendment would be to
enable automatic adjustment of combination sentences if any decisions are made that
affect the timing of periodic detention, or that refer a periodic detention matter back to
the sentencing court.
Clauses 1.16, 1.17 and 1.18 provides a means for the Sentence Administration Board
to grant an extended period of leave, or refer a matter back to the sentencing court, if a
periodic detainee cannot serve periodic detention due to exceptional circumstances or
serious health reasons.
The sentencing court can decide to continue to impose the sentence as originally made
or re-sentence the offender.
Clause 1.19 complements the correction discussed in clause 1.13. The amendment
ensures that the interim custody period contemplates detainees transferred to NSW.
Clause 1.20 relates to section 506 of the Bill. Chapter 17 of the Crimes (Sentence
Administration) Act 2005 provides transitional arrangements to enable existing
custodial laws to apply until the Corrections Management Act commences. The
Crimes (Sentencing) Act 2005, the Crimes (Sentence Administration) Act 2005 and the
Corrections Management Bill 2006 have been drafted using common terms, methods
and connections. The three are designed to work together and make sense of a
sentence from sentencing to the completion of a prison term.
To ensure the ACT's custodial laws continue to operate in harmony with the new
Sentencing Acts until the Corrections Management Bill 2006 is enacted, chapter 17
provides transitional methods and powers to resolve any legal conflicts should they
arise.
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The transitional provisions are linked to the commencement of this Bill.
This amendment links the expiry of chapter 17 to the expiry of clause 506. In effect it
aligns the expiry of the interim custody provisions.
Clauses 1.21 to 1.23 update relevant definitions.
Part 1.4 -- Evidence (Miscellaneous Provisions) Act 1991
Clause 1.24 gives effect to clause 202 which enables the use of technology to conduct
hearings. It enables appearances by relevant parties and witnesses to take place via
audiovisual or audio links. The individuals do not have to be physically before the
presiding officer.
Part 1.5 -- Listening Devices Act 1992
Clause 1.25 amends the Listening Devices Act 1992 to clarify that the Act does not
apply to the monitoring provisions set out in chapter 9 of this Bill.
Part 1.6 -- Magistrates Court Act 2005
Clause 1.26 follows recent case law and assigns the function to a court rather than the
registrar.
Clause 1.27 simplifies this section.
Part 1.7 -- Security Industry Regulation 2003
Clause 1.28 updates a reference in the Security Industry Regulation.
Dictionary
The Bill includes a dictionary which draws upon the dictionary of the Legislation Act
2001 and provides definitions for this Bill.
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