Prison and Community Corrections

Contributed by Lorana Bartels and Caroline Doyle. Current to February 2022.

Introduction

The Alexander Maconochie Centre (AMC) is the first (and only) prison in Australia designed and built to operate as a ‘human rights’ prison. In 2019, the ACT Government finalised the Human Rights Principles for ACT Correctional Centres , which provide a clear set of guiding principles about how detainees should be supported from their initial contact with corrections through to their release.

According to ACT Corrective Services (ACTCS) (which runs the AMC), accommodation at the AMC includes cell-blocks, domestic style cottages, a medical centre and special areas for detainees in crisis or transitioning to the community. The AMC is designed in an open campus style design, with accommodation units around a central facilities area. This includes a health building, as well as areas for admissions, education and programs and visits.

Many detainees live in cottages. These are designed to enable detainees to develop and practise living skills.

The AMC has seen a significant rise in numbers since it opened in 2009. In the March 2020 quarter, there was an average of 442 detainees (compared with 320 six years earlier). Of these, approximately 23% were Aboriginal and/or Torres Strait Islander, 7% were women and 43% were unsentenced. The specific issues relating to each of these categories of detainees are discussed further below.

In 2019, the ACT Government committed to constructing a minimum security ‘reintegration centre’ adjacent to the AMC. The intent of the centre is to build on ongoing rehabilitation programs and it is anticipated that it will include a range of programs, services and training courses. In response to changing circumstances and pressing accommodation priorities, work on the Reintegration Centre has been paused, however the period of deferral is being used to focus on the reintegration and rehabilitation programs delivered to support detainees to transition back into the community. Further to this, the deferral is being utilised to develop a more strategic plan for the accommodation of the current and projected detainee populations and cohorts. It is envisaged that pausing the construction on the Reintegration Centre to focus on the necessary infrastructure works, the programs, and the development of a medium to long-term accommodation plan will equip ACTCS with the tools necessary to drive real improvements, not only in regard to the Government’s stated priority of Reducing Recidivism by 25% by 2025 (RR23by25), but also in regard to supporting efforts to address the overrepresentation of Aboriginal and Torres Strait Islanders in the ACT justice system.

Throughout the COVID-19 pandemic, a small number of detainees and staff tested positive during 2021. Each of these positive cases contracted COVID-19 while in the community and there has been no transmission of COVID-19 within the AMC. In response to the detection of COVID-19 positive cases, the AMC was placed into full centre lockdown on two occasions; each of these lockdown periods were short-lived.

In order to avoid COVID-19 transmission, rigorous procedures are in place for admission to the AMC. This includes initial accommodation and testing, with new detainees not being placed into accommodation units until after returning a second negative test on day five of their admission. There will be a continued focus on the safe and appropriate handling of detainees (particularly new admissions) and the wearing of personal protective equipment by staff to prevent any spread of COVID-19 within the AMC.

There were some necessary interruptions to social visits at the AMC due to the COVID-19 pandemic. These were implemented to ensure the health and safety of all detainees and visitors. Since March 2020, to assist in maintaining contact with family and friends, detainees have been provided with an additional $20 phone credit per week.

Vaccination rates of detainees is high. As of 25 November 2021, 91% of detainees had received their first vaccine and 83% had received their second dose. It is noted, however, that these numbers will continue to fluctuate, as detainees enter, and are released from, custody. In order to address this, ongoing vaccination clinics are being held on a weekly basis.

On 1 December 2021, a pilot program of COVID-19 Rapid Antigen Screening (RAS) commenced at the AMC. On this date, a RAS test became a condition of entry for everyone entering the AMC, including ACTCS staff and visitors.

Relevant Legislative and Policy Frameworks

Section 12 of the Corrections Management Act , which is referred to in s 9(e) above, provides 11 minimum living conditions ‘to protect the human rights of detainees at correctional centres’. The minimum living conditions in section 12 mirror the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Standard Guidelines for Corrections in Australia, although neither of these are legally enforceable.

There are many laws, policies and procedures which govern the life of detainees in the AMC. These policies and procedures deal with issues such as access to health care, Aboriginal and Torres Strait Islander detainees, smoking in prisons, infectious diseases, the spirit in which correctional programs should be administered, and the management and security of detainees. Some of the policies are restricted (not available for the public to see). The most important piece of legislation that governs the treatment of detainees in the ACT is the Corrections Management Act 2007 (ACT). Other important legislation includes:

• Corrections Management Act 2007 (ACT)
• Corrections Management Regulation 2010 (ACT)
• Crimes (Sentencing) Act 2005 (ACT)
• Crimes (Sentence Administration) Act 2005 (ACT)
• Human Rights Act 2004 (ACT)
• Public Sector Management Act 1994 (ACT)
• Privacy Act 1988 (Cth)

As set out above, the AMC is the only ‘human rights’ prison in Australia. This is in part because the ACT is one of only two states or territories in Australia with a human rights framework (the other is Victoria). The Human Rights Act 2004 (ACT) incorporates the rights in the international United Nations document the International Covenant on Civil and Political Rights(ICCPR). The most relevant provisions in the ICCPR for prisoners are the prohibition on torture and cruel, inhuman or degrading treatment or punishment (Article 7) and the statement that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’ (Article 10(1)). Article 10(3) states that reformation and social rehabilitation is the essential aim of the treatment of prisoners in the penitentiary system.

The provisions in the Human Rights Act (based on the ICCPR) that are relevant to detainees are section 10, which puts Article 7 of the ICCPR into effect and section 22, which gives effect to Article 10(1). The Human Rights Act also imposes duties on public authorities, including the AMC. This means it is illegal to act in a way that is inconsistent with the human rights prescribed in the HRA and the AMC is required to consider these rights when making decisions (ss 40, 40B of the Human Rights Act ). The Human Rights Act also gives people the right to bring legal action in relation to alleged breaches of duty by public authorities to comply with the provisions of the Human Rights Act (ie, if a corrections officer does not follow rules on human rights (ss 40B, 40C), although the law also states that all of the human rights provided for in the Human Rights Act may be subject to reasonable limits set by Territory laws (s 28).

The other provisions of the Human Rights Act that are mainly relevant to detainees relate to:

• recognition and equality before the law (s 8)
• protection from torture and cruel, inhuman or degrading treatment (s 10)
• protection of liberty and security of person (s 18)
• humane treatment when deprived of liberty (s 19)
• the various rights relating to a fair trial (s 21), criminal proceedings (s 22), compensation for wrongful conviction (s 23) and the right not to be tried or punished more than once (s 24).
• freedom of movement (s 13), association (s 15), and expression (s 16).

The day-to-day management of the AMC is governed by the Corrections Management Act 2007 (ACT), which covers the following issues:

• objects and principles
• administration issues
• detention in police and court cells
• escorting detainees
• living conditions at correctional centres
• inspection of correctional centres
• admission to correctional centres
• management and security, including segregation, searches and seizing property
• discipline
• leave for full-time detainees

Functions under the Corrections Management Act (that is, operating the AMC) must be exercised in accordance with a list of ‘rights’ in section 9, namely:

• respecting and protecting the detainee’s human rights
• ensuring the detainee’s decent, humane and just treatment
• preventing torture or cruel, inhuman or degrading treatment
• ensuring the detainee is not subject to further punishment (in addition to the deprivation of liberty) only because of the conditions of detention
• ensuring the detainee’s conditions in detention comply with section 12
• if the detainee is an offender, promoting, as far as practicable, their rehabilitation and reintegration into society.

In addition, the principle that custodial sentences are imposed as punishment – and not for further punishment – is explicitly reflected in the Corrections Management Act as a general principle (see Preamble [2]). In relation to the segregation of prisoners specifically, section 89 provides: ‘To remove any doubt, segregation under this part must not be used for punishment or disciplinary purposes'. However, s184 of the Corrections Management Act provides that separate confinement can still be imposed as a disciplinary measure.

Section 12 of the Corrections Management Act , which is referred to in s 9(e) above, provides 11 minimum living conditions ‘to protect the human rights of detainees at correctional centres’. The minimum living conditions in section 12 mirror the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Standard Guidelines for Corrections in Australia, although neither of these are legally enforceable. These conditions include:

• access to sufficient food and drink
• access to suitable clothing and facilities for personal hygiene
• suitable accommodation and bedding
• reasonable access to open air and exercise
• reasonable access to telephone, mail and other forms of communication
• reasonable access to visits and
• reasonable access to health services.

Chapter 6 of the Corrections Management Act explains these minimum living conditions in more detail and covers the matters contained in section 12, as well as issues such as:

• the treatment of convicted and non-convicted detainees (s 44)
• transfers to health facilities (s 54) and
• religious, spiritual and cultural needs (s 55).

Despite these well-intended policies and procedures, challenges have been identified with following and implementing them on a day-to-day basis. This has been highlighted through several recent incidents at the AMC, such as a death in custody, a riot and serious fires, a hostage situation, a detainee escape from a secure escort, and the use of force during a strip search, all of which have been investigated by the ACT Inspector of Correctional Services and other oversight bodies (see Inquiries into the AMC). For example, the 2021 review into the use of force during a strip search found that, some of the actions by ACTCS staff breached the Corrections Management Act, Human Rights Act and ACTCS policies and procedures. ACTCS have yet to publicly respond to the review’s recommendations. There is also an ongoing case in the ACT Supreme Court, regarding a drawing that prison staff made of a detainee. This case involves allegations that ACTCS staff failed in their duty of care to the detainee, and in preventing the detainee from suffering harm, and protecting their human rights.In 2020-21 the ACT Ombudsman received 116 complaints about ACTCS, with all complaints concerning the AMC. Most complaints concerned access to medical treatment, parole processes, quality of food, access to visitors and segregation and management.

In December 2020, an Oversight Committee was established to look at ongoing issues concerning staff training and development, staffing levels, rosters and workforce culture at the AMC and the Court Transport Unit.

Inquiries into the AMC

There have been several inquiries into the operation of the AMC:

• The ACT Human Rights Commission’s Human Rights Audit on the Conditions of Detention of Women and the Government’s response to this
• the ACT Auditor-General’s report on the Rehabilitation of Male Detainees at the AMC and the Government’s response to this;
• the ACT Legislative Assembly’s Inquiry into Auditor’s-General’s Report the Rehabilitation of Male Detainees at the AMC and the Government’s response to this;
• the Inquiry into the Treatment in Custody of Detainee Steven Freeman (the Moss Review) and the Government’s response to this;
• the ACT Health Services Commissioner’s review of the opioid replacement treatment program at the AMC;
• the ACT Inspector of Correctional Services report on the care and management of remandees at the Alexander Maconochie Centre and the ACT Government’s response to this;
• the ACT Inspector of Correctional Services Healthy Prison Review of the AMC and the ACT Government’s response to this
• The ACT Inspector of Correction Services Review of ACT Corrective Services Court Transport Unit and
• the ACT Ombudsman’s review of parole processes at the AMC and investigation into the administration of parole by ACT Corrective Services

ACTCS are continuing to implement a range of recommendations in response to these inquiries, as outlined in the ACT Government’s responses.