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Prevention in the Capital: the Australian Capital Territory’s Office of the Inspector of Correctional Services

This article was originally published in the ICPA External Prison Oversight and Human Rights Network’s Newsletter Issue #2 – http://bit.ly/2D4eg5n


The Australian Capital Territory Office of the Inspector of Correctional Services (ACT OICS) was established in 2017 to provide independent oversight of ACT Correctional and Youth Justice facilities, focusing on continual improvement and prevention of ill-treatment. This oversight is provided through conducting periodic examination and reviews of ACT Correctional facilities and services, and reviewing critical incidents.

The ACT Inspector of Correctional Services is Neil McAllister. He was appointed to the position in March 2018 for a five year term. There are two other staff members, the Deputy Inspector, Rebecca Minty, and a Research and Inspections Officer, Holly Fredericksen.

The Australian Capital Territory Office of the Inspector of Correctional Services (ACT OICS) was established in 2017 to provide independent oversight of ACT Correctional and Youth Justice facilities, focusing on continual improvement and prevention of ill-treatment. This oversight is provided through conducting periodic examination and reviews of ACT Correctional facilities and services, and reviewing critical incidents.

The ACT Inspector of Correctional Services is Neil McAllister. He was appointed to the position in March 2018 for a five year term. There are two other staff members, the Deputy Inspector, Rebecca Minty, and a Research and Inspections Officer, Holly Fredericksen.

Background to the establishment of the ICS

The role of Inspector was established with the passage of the Inspector of Correctional Services Act 2017 (ACT) (ICS Act) in response to a number of critical incidents that had occurred at the ACT’s one jail, the Alexander Maconochie Centre (AMC). In particular, the tragic death of a 25 year old Aboriginal man at the AMC in May 2016 prompted an independent inquiry. The ACT Government’s response to that inquiry included a commitment to establish an Inspector of Correctional Services, although entities such as the ACT Human Rights Commission had called for an Inspectorate years earlier.

The establishment of preventive oversight over adult and youth detention in the ACT was particularly timely, given Australia ratified the Optional Protocol to the Convention against Torture (OPCAT) in December 2017. The legislation to establish the ACT OICS was developed to reflect the requirements and expectations around the establishment of a national preventative mechanism under the OPCAT. This resulted in the creation of a preventative focused independent statutory authority with all the powers and guarantees required in OPCAT, for example, the right to access to any place of detention at any time, the power to speak with detainees and staff, and the right to access documents including registers. Furthermore, when conducting an examination and review, the ICS Act requires that the review team include those with expertise relevant to the subject matter being reviewed, and all reports from examinations and reviews must be publically tabled in the Legislative Assembly. By December 2019, the Inspector’s jurisdiction will be expanded to include oversight of Bimberi, the ACT Youth Justice facility that has 40 beds but usually has less than 20 young persons detained at any one time.



 

Local context of the Australian Capital Territory

The ACT is a small jurisdiction with a population of just over 400,000 and is home to Canberra, the capital city of Australia. Until 2009 the ACT did not have a prison but instead sent detainees interstate to New South Wales. In some cases this meant incarceration hundreds of kilometres away from family. The ACT’s first and only prison, opened in 2009 and is named after nineteenth century penal reformer Alexander Maconochie, who from 1840-1844 was the commandant of the convict colony of Norfolk Island off Australia’s east coast and had enlightened ideas of focusing on rehabilitation rather than retribution. The AMC houses remand and convicted male and female detainees of all security classifications and has a population of around 500 detainees.

The ACT is one of two jurisdictions within Australia’s federated structure that has stand-alone human rights legislation: the Human Rights Act 2004 (ACT) (HR Act), and thus human rights law and practice informs the inspectorate’s work. Of particular relevance is the right to be free from cruel, inhuman or degrading treatment or punishment; the right to humane treatment when deprived of liberty; and the principle of equality before the law. The HR Act also protects the distinct cultural rights of Aboriginal and Torres Strait Islander people. This right is particularly relevant given the shocking statistic that Aboriginal and Torres Strait Islanders make up less than 2 per cent of the ACT population but account for more than one third of all detainees in AMC, and close to two thirds of women detainees.

The role and function of the Inspectorate

Under the ICS Act, the Inspector is required to undertake an ‘examination and review’ of a correctional centre every two years and a correctional service every two years. The Inspectorate has adopted the World Health Organisation’s ‘Healthy Prison’ approach to conducting the whole of prison reviews, and has developed ACT-specific inspection standards and an inspection framework (available on the website: www.ics.act.gov.au ). The Inspector is also required to review critical incidents, defined in the ICS Act to include, for example, a death in custody, serious assault or an escape. The Inspectorate reviews critical incidents from a preventive rather than reactive stand point: seeking to identify any lessons learnt that could help prevent reoccurrence (as well as identify good practices). At the time of writing the Inspectorate has published two critical incident reports, both relating to detainee on detainee assaults. The Inspectorate does not take individual complaints but will refer these complaints to other oversight agencies, such as the ACT Ombudsman and ACT Human Rights Commission.

The Inspectorate’s first thematic review: treatment and care of remandees

In February 2019 the Inspector tabled the first thematic review, ‘The care and management of remandees at the Alexander Maconochie Centre 2018’. Remandees currently make up almost 40% of the ACT’s overall prison population, and almost 60% of women in custody. Although the AMC was initially designed to separate convicted and remanded detainees, in recent years the two cohorts have been mixed due to overcrowding pressures. The review considered whether remandees were being treated in a manner consistent with the presumption of innocence contained in ACT corrections legislation and the HR Act, and made a number of findings that identified areas for improvement. These included the need for a specific policy on remandees, the need to accurately capture time out of cells and to introduce measures to avoid prolonged lock-ins, and the need for improvements in ensuring remandees have access to the outside world (in particular, family and lawyers). Access to family was noted as particularly important in the initial days after remand in custody and the stress, anxiety and trauma that can flow from detention.

Many issues identified in the review related to overcrowding at the AMC, something clearly beyond the control of ACT Corrective Services. High detainee numbers creates additional challenge in the ACT due to the many cohorts within the prison and the inability to use other prisons to absorb capacity or to send detainees who can’t mix with others for whatever reason. This overcrowding and in particular the increase in numbers of women led to the movement of the female detainees from a purpose-built cottage-style accommodation area to a high security accommodation unit within the men’s area, which had been designed to cater for males. It was concerning to see women accommodated at a higher security level than necessary for most of them, and also their limited access to services, programs and rehabilitation. Although women make up less than 10% of the overall AMC population, it is crucial that they are not disadvantaged in terms of equality of outcome compared to the men. The findings of the Inspector’s reports will be subject to ongoing monitoring and follow up including as part of our first Healthy Prison Review to be conducted in mid-2019.

The ‘Healthy Prison Review’

The review will be conducted against monitoring standards the Inspectorate has developed based on the elements of a healthy prison, and drawing from standards produced by other inspectorates including Her Majesty’s Inspectorate of Prisons in the UK and prison inspectorates in Australia including in Western Australia, New South Wales and Tasmania.

The review will involve supplementing our small staff with experts on a contract basis to conduct a week of onsite inspections, including observations, file reviews, discussions with detainees and staff, and surveys of detainees, staff and visitors. Prior to the onsite component, the Inspectorate will conduct a survey of detainees, staff and visitors. We will also hold community forums and have invited submissions from stakeholders.

As the newest Australian prison inspectorate, ACT OICS are fortunate to have support and collaboration from other Australian inspectorates. This has taken the form of advice, conducting joint monitoring visits, and drawing inspiration from their standards, inspection framework and reports. This experience has been invaluable through the establishment phase of the ACT Inspectorate. The ‘ACT approach’ we are developing also seeks to maximise on the unique features of the ACT as a ‘city-state’ – all places of detention within 20 minutes of the city, and it is possible to meet key stakeholders regularly. We are therefore seeking to develop collaborative and constructive relationships with a range of stakeholders whilst maintaining independence. With Australia’s recent OPCAT ratification it is an exciting time to be working in the area of preventive oversight in Australia. We strive to ensure continual improvement in corrections, but are also constantly reflecting on our own continual improvement so are pleased to be part of national and international networks for sharing experiences.

Author: Rebecca Minty ( Deputy Inspector) & Holly Fredericksen ( Research and Inspections Officer ), Office of the Inspector of Correctional Services , Australian Capital Territory.