Legal Framework

Legislation

The legal framework that sets out the functions and powers, and guarantees the independence of the Inspector of Correctional Services, is set out in the Inspector of Correctional Services Act 2017 (ACT).

The Corrections Management Act 2007 (ACT) is the most relevant legislation that sets out the framework for the management, treatment and care of adult detainees in the ACT.  Policies and Procedures that govern the operation of the Alexander Maconochie Centre are notified instruments under the Corrections Management Act and can be found on Corrections Management Act homepage on the ACT Legislation Register.

The Human Rights Act 2004 (ACT) sets out rights belonging to all in the ACT. Of particular relevance to detention in an ACT corrective service facility is the right to humane treatment when deprived of liberty, and all of the rights in the Human Rights Act apply equally to persons in prison.

By November 2019 the role of the Inspector of Correctional Services will expand to include responsibility for oversight of Bimberi Youth Justice Facility. Bimberi is regulated by the Children and Young People Act 2008 (ACT).

Human Rights

The ACT is a human rights jurisdiction. The Human Rights Act 2004 (ACT) sets out the rights all persons in the ACT are entitled to.

Human rights standards to govern corrections

The Human Rights Act sets out rights applicable to all in the ACT, including rights belonging to persons deprived of their liberty. Section 19 protects the right to humane treatment when deprived of liberty. Other rights, for example, protection from cruel, inhuman or degrading treatment, the right to a fair trial, rights in criminal proceedings, right to privacy and reputation, and the right to recognition and equality before the law are all very relevant to treatment and care in prison. The rights in the Human Rights Act are mostly drawn from the International Covenant on Civil and Political rights.

The ACT’s human rights framework is reflected in the Corrections Management Act 2007 (ACT). For example, section 9 requires that functions carried out under that Act must be exercised in a way that respects and protects the detainee’s human rights. In relation to living conditions at the AMC, the Corrections Management Act sets out minimum standards required to “protect the human rights of detainees”. There are other aspects of the Corrections Management Act that reflect human rights standards for a closed environment. These include, for example protections to ensure communication between unconvicted detainees and their lawyer are confidential, certain minimum conditions (such as access to food, clothing, facilities for personal hygiene etc.) that cannot be taken away as part of a disciplinary offence, and the ability for independent oversight entities, including the Inspector of Correctional Services, to visit and inspect registers.

Detailed human rights standards for corrections

The Human Rights Act 2004 (ACT) states at section 31 that international law relevant to a human right may be considered in interpreting the human right. In relation to human rights in prisons, there are rich sources of guidance in international law. Some of these include:

  • the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (2015). These standards were developed in 1957 and revised in 2015, and are often regarded by States as the primary source of standards relating to treatment in detention.
  • United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) (2010). These rules give guidance on approaches to reduce the imprisonment of women and to meet the specific needs of women in case of imprisonment.
  • the Optional Protocol to the Convention Against Torture (OPCAT) 2006. This Treaty sets out a framework for preventing abuse and mistreatment in detention through independent preventive monitoring.

Over time, a range of prison oversight entities in Australia and around the world have drawn on international law and developed their own human rights standards or expectations for custodial environments. The ACT Inspector of Correctional Services is in the process of developing Correctional Standards for the ACT.

Human rights obligations of public authorities

The ACT Human Rights Act requires Public Authorities (as defined in the Human Rights Act), including ACT Corrective Services and other entities providing services to detainees that are ‘of a public nature’, to act and make decisions consistent with human rights. Detainees or others that allege a breach of their human rights can bring an action in the ACT Supreme Court, which has the power to award a range of remedies, excluding damages.