Legal Framework

Legislation

The functions and powers of the Custodial Inspector, is set out in the Custodial Inspector Act 2017 (ACT). Other legislation relevant to our work includes:

  • The Corrections Management Act 2007 (ACT), which sets out the framework for the management of detained adults 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 the ACT Legislation Register.
  • Bimberi Youth Justice Centre is regulated by the Children and Young People Act 2008 (ACT), which sets out the framework for the management of children and young people detained at Bimberi. Policies and procedures that govern the operation of the Bimberi Youth Justice Centre are notified instruments under the Corrections Management Act and can be found on the ACT Legislation Register.

A statutory review of the Inspector of Correctional Services Act 2017 (ICS Act) was conducted after the Act’s fifth year of operation in accordance with section 39 of the ICS Act. The Review was undertaken by the Justice and Community Safety Directorate (JACS) under the direction of the Minister for Corrections. You can read the Statutory Review Report: Inspector of Correctional Services Act 2017 and OICS Submission to the review of the ICS Act 2017.

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. All if the rights in the Human Rights Act apply equally to persons in prison. Of particular relevance to detention is the right to humane treatment when deprived of liberty.

Other rights are also relevant to treatment and care in prison, 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;
  • right to recognition and equality before the law.

For detained young people, they enjoy the same human rights as adults, but additionally have the right to the protection needed because they are a child, which includes anyone aged under 18 years old. This protection should apply without distinction or discrimination of any kind.

Children and young people in the criminal process must also be segregated from accused adults, be brought to trial as quickly as possible, and treated in a way that is appropriate for a person of the child’s age.

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, the Community Services Directorate and other entities providing services to detained people, to act and make decisions consistent with human rights. Detained people or others that allege a breach of their human rights can bring an action in the ACT Supreme Court, or make a complaint to the ACT Human Rights Commission.

International Standards

The Human Rights Act 2004 (ACT) provides 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.
  • the 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 Custodial Inspector has developed their own ACT Standards for Adult Correctional Services and ACT Standards for Youth Detention Places.

Privacy

Please see our Collection and Release of Information Policy 2024