New ACT Act to Create Role of Inspector of Correctional Services

Monday 11 December 2017 @ 10.32 a.m. | Crime | Legal Research

Last week, the Inspector of Correctional Services Act 2017 [ACT] (the “Act”) was assented by the Attorney General of the Australian Capital Territory. This Act, enacted from the Inspector of Correctional Services Bill 2017 (the “Bill”), establishes a new, independent position of Inspector of Correctional Services (the “Inspector) for the ACT. It also provides for the operational structure surrounding the Inspector, including provisions for support staff and contractors with diverse or specialised expertise. The purpose of the Act, as denoted in the explanatory statement to the Bill, is to:

establish a preventive, proactive and independent role with the expertise and resources to conduct a systematic examination of adult and youth correctional centres and services
establish a review framework for correctional centres and services based on delivery of the objects of the Corrections Management Act 2007 (CM Act), Children and Young People Act 2008 (CYP Act) and other legislative and international obligations to promote continuous improvement and facilitate best practice
ensure detainees’ rights are protected and promote the wellbeing, rehabilitation and reintegration into the community of detainees
ensure accountability and transparency of correctional centres and services by providing independent reports about the effectiveness of centres and services to the Legislative Assembly.

Background

Last year, on the 27^th May 2016, Steven Freeman, a 25 year old Aboriginal man, died while in custody at the Alexander Maconochie Centre (AMC) in the ACT. His death came after Mr Freeman was seriously assaulted in April 2015, the investigation into which yielded no charges, as there was deemed to be insufficient evidence surrounding the assault. A coronial inquest is now under way into Mr Freeman’s death in custody, as required by the Coroners Act 1997.

Consequent to Mr Freeman’s death, the Minister for Corrections, Shane Rattenbury MLA, announced that an independent inquiry was to be commenced, with particular focus into Steven Freeman’s care and treatment in custody. The report to the Inquiry into the Treatment in Custody of Detainee Steven Freeman, was released on the 7^th November 2016, with Mr Philip Moss AM as the independent reviewer. The terms of reference for the report were:

the adequacy of the management, care and custody of detainee Steven Freeman at the AMC and the compliance of this care and custody with human rights obligations;
the overall effectiveness of the application of relevant policies and procedures in the care and custody of Steven Freeman;
the adequacy of induction and risk assessment policies and procedures at the AMC and how these were applied to Steven Freeman;
the adequacy of policies and procedures relating to separation of vulnerable detainees at the AMC and how these were applied to Steven Freeman;
the extent of the consideration given to Aboriginal culture, traditions and beliefs in the management, care and custody of Steven Freeman;
the effectiveness of information sharing arrangements between ACT Policing and ACT Corrective Services around new and remand detainees at AMC; and
the accessibility and appropriateness of health and other support services within the AMC for Steven Freeman.

Government Response to the Report

The Report released in November of 2016, (the “Moss Review”) made 9 recommendations, eight of which were agreed to by the ACT Government, wholly or in principle. An extract from the Government Response (pp 2-3) to the inquiry sets out the Government response to date:

“The Moss Review, along with a number of other reviews in recent times relating to operations at the AMC, will result in significant reform within ACTCS, particularly around the provision of health and custodial services at the AMC, and has already had an impact on operations.

The ACT Government will implement each of the agreed recommendations as a high priority. However, some of these will need to be successively implemented, as a number of the recommendations will require long-term planning, cross directorate coordination and have multi-year implications. Implementation of recommendations from the Moss Review 3 will also consider any future recommendations that may result from the Coronial Inquest into Steven Freeman’s death.

To progress the Government Response to these recommendations a high-level implementation working group comprising appropriate representatives from the JACS Directorate, ACT Health, Community Services Directorate, ACT Policing, ACT Ombudsman and ACT Human Rights President, as well as representatives from the ACT Aboriginal and Torres Strait Islander legal and health services sector and broader community, will be established to oversee and drive the implementation of the recommendations and report on its progress to the Minister for Corrections.

The Minister for Corrections will provide updates on progress as key milestones are met in implementing the recommendations.

The Minister for Corrections will also provide a Ministerial Statement to the ACT Legislative Assembly on the progress of implementation at appropriate intervals, with the first annual report scheduled to be tabled in February 2018 (the twelve month anniversary of the tabling of this response).”

The Bill

The Bill was introduced into the ACT Legislative Assembly in response to the Moss review's recommendation 8: “that the ACT Ombudsman have the role of reviewing the response to all critical incidents at the AMC including serious assaults”. As stated in the explanatory statement to the Bill (pp 1-2):

"The Inspector of Correctional Services Bill 2017 (the Bill) establishes a new oversight mechanism and independent statutory authority called the Inspector of Correctional Services, to oversee and critically examine the operations of the adult and youth correctional system with a preventive focus.

Implementing the Inspector of Correctional Services for both adult and youth custodial environments and services will provide an additional level of external oversight that complements existing mechanisms.

These robust mechanisms for transparency and accountability work together to protect the most vulnerable people in the ACT and prevent harm. The inclusion of youth justice centres within the remit of the Inspector will further strengthen the ACT position in ensuring transparent and accountable services to young people who are detained.

As an additional level of oversight, the establishment of the Inspector supports a comprehensive agenda for the continuous improvement of corrections in the ACT, to increase transparency and deter mismanagement, unfairness and corruption.

The establishment of the Inspector is an opportunity to take a collaborative approach to identify strengths and areas for improvement. It will also be an opportunity to identify achievements, increase staff engagement and lead sustainable change towards best practice.”

The Act's Provisions

Notified on the 7^th of December, the majority of the Act commenced on 8^th of December 2017 (see section 2). The main object of the Act, as per section 6(1), “is to promote the continuous improvement of correctional centres and correctional services.” Correctional service is defined in section 8 of the Act.

“In this Act: correctional service—

(a) means—

(i) the management, control and security of a correctional centre; or

(ii) the security, control, safety, care and welfare of a detainee at a correctional centre; and

(b) includes policies, processes and procedures in relation to the matters mentioned in paragraph (a).”

Part 2 of the Act concerns the creation of the role of the Inspector of correctional services. Division 2.1 of Part 2 deals with the appointment of the inspector, and includes measures for appointment (s 9), disclosure of interests (s 10), restrictions such as doing work inconsistent with the role (s 11), and ending of the appointment (s 12).

Division 2.2 of Part 2 then goes on to create the office of the inspector. This office includes all supportive roles essential to upholding the office of the Inspector, including: inspector’s staff (s 13), contractors (s 14), public servants or Territory facilities (s 15), and delegates (s 16).

The functions of the Inspector are denoted in Part 3 of the Act and include (s 17(1)):

“The inspector has the following functions:

(a) to examine and review correctional centres;

(b) to examine and review correctional services;

(d) to report under part 4 (Reports by inspector);

(e) to exercise any other function given to the inspector under this Act or another territory law.”

The Part then goes on to provide for access by the Inspector to the Correctional Centres as well as supplying the Inspector the power to ask for information, documents and other things (s 22), where “the inspector believes, on reasonable grounds, that a person can provide information or produce a document or something else relevant to an examination or review” ( s 22(1)).

Further provisions made by the Act include certain offences related to reporting information (ss 23-26), the making of reports by the inspector (Part 4), and cooperation and referral between inspector and other entities (Part 5).

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.