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CRIMES (SENTENCE ADMINISTRATION) AMENDMENT REGULATION 2007 (NO 2) (NO 34 OF 2007)
2007
THE
LEGISLATIVE ASSEMBLY FOR
THE AUSTRALIAN CAPITAL
TERRITORY
CRIMES (SENTENCE
ADMINISTRATION)
AMENDMENT REGULATION 2007 (No
2)
SL2007–34
EXPLANATORY
STATEMENT
Circulated by authority of
the
Attorney General
Simon Corbell MLA
This regulation is made to resolve a potential legal contradiction identified
by the Human Rights Commission in its report on ACT corrections facilities:
Human Rights Audit on the Operation of ACT Correctional Facilities under
Corrections Legislation (the Human Rights Report).
The context of the
issue is the Territory’s sentencing and custodial laws.
The
Crimes (Sentencing) Act 2005 consolidated the Territory’s
sentencing laws and introduced a number of new sentencing dispositions. The
Crimes (Sentence Administration) Act 2005 provides for administration of
sentencing dispositions and created a standard model for managing each
sentencing option. The Crimes (Sentence Administration) Act 2005 also
authorises the Chief Executive to take custody of remandees and prisoners
following criminal proceedings.
The Corrections Management Act
2007 provides the law that will govern the treatment and management of
prisoners and other detainees in the Australian Capital Territory. The
Corrections Management Act 2007 will replace the Remand Centres
Act 1976. The Corrections Management Act 2007 will govern the
new prison anticipated for the ACT, the Alexander Maconochie Centre (AMC), as
well as any present and future corrections facilities.
The Crimes
(Sentencing) Act 2005, the Crimes (Sentence Administration) Act 2005
and the Corrections Management Act 2007 were drafted using common terms,
methods and connections. The three are designed to work together to provide a
cohesive framework for all criminal dispositions — from the time of remand
through to sentencing and the completion of a prison term.
The
Sentencing Legislation Amendment Act 2006 provided consequential
amendments for the Crimes (Sentencing) Act 2005, the Crimes (Sentence
Administration) Act 2005, and the Corrections Management Act 2007.
The Sentencing Legislation Amendment Act 2006 repealed old
sentencing and sentence administration laws and established transitional
provisions.
Chapter 17 of the Crimes (Sentence Administration) Act
2005 now provides transitional arrangements to enable the existing
custodial laws to apply until the Corrections Management Act 2007
commences. Chapter 17 also provides transitional methods and powers
to resolve any legal conflicts should they arise.
The Human Rights Report
noted that section 20 of the Remand Centres Act 1976 entitles remandees
to wear their own clothing. However, Standing Order 3.1.1 made under the
Remand Centres Act 1976 purports to limit this entitlement at the
Superintendent’s discretion. The Human Rights Report notes that:
“It appears that this discretion has not been exercised recently, perhaps
making it arguable that s.20 of the Remand Centres Act 1976 is not
routinely complied with”. [p.53]
Section 19(3) of the Human Rights Act 2004 recognises that “an accused person must be treated in a way that is appropriate for a person who has not been convicted”.
The Human Rights Act 2004 does not specifically provide for
remandees clothing. However, section 31 of the Human Rights Act 2004
enables the consideration of international law in the interpretation of a human
right. International law includes declarations and standards adopted by the
United Nations General Assembly. Consequently, the United Nations Standard
Minimum Rules for the Treatment of Prisoners (1957) (SMRs) apply in the
interpretation of the rights of remandees contemplated by section 19 of the
Human Rights Act 2004.
Rule 88 of the SMRs entitles remandees to
wear their own clothing “if it is clean and suitable” and if prison
dress is worn it should be “different from that supplied to convicted
prisoners”. In the ACT the practice of providing uniform clothing to
remandees has evolved to ensure detainees’ safety, for example minimising
opportunities for self-harm, intimidation and theft.
Section 8 (Treatment of remandees) and part 3.2 (Remand) of the Crimes
(Sentence Administration) Act 2005 provides that the effect of a remand
order is that the chief executive responsible for the administration of the Act
must take custody of remandees. Section 8 also requires the management of
remandees to be conducted in a manner consistent with human rights.
Given
the differing obligations between the rule of section 20 of the Remand
Centres Act 1976 and the Territory’s duty to ensure remandees are safe
in custody, the Government has decided that an exercise of the transitional
powers in chapter 17 is justified.
The regulation authorises the chief
executive to decide that all remandees must wear clothing provided by the chief
executive. The decision may be made if one or more of the following
considerations make it necessary to exercise the power:
• The risk
of harm to remandees, staff, visitors posed by types of clothing. For example
clothing that contains drawstrings poses a risk that the drawstrings can be used
for self harm. Metal in shoes, buttons and zippers that can be sharpened, can
be used either for self-harm or fashioned into weapons.
• The
protection of vulnerable remandees. One of the lamentable problems that occurs
in custody are incidents of intimidation or stand-over tactics used by some
hostile remandees to steal attractive items, or name brands, from vulnerable
remandees.
• Maintaining good order of the centre. Clothing is
often used as a means of identifying as part of group or affiliation with the
intention of intimidation or gaining favoured status. It is often the
perception that the group or affiliation may be prepared to use violence that
enables the intimidation to occur. Clothing is also used as currency for trade
or gambling purposes.
• Maintaining the safety of visitors and
staff. Certain types of clothing can be used to conceal identity or unlawful
activity from closed circuit TV. Jackets with hoods, baggy clothes, beanies etc
are able to conceal a person’s identity or blend in with visitors for
purposes of receiving contraband or escape.
This is a technical clause which names the regulation. The name of the regulation would be the Crimes (Sentence Administration) Amendment Regulation 2007 (No 2).
The regulation commences on the day following the day the regulation is notified on the legislation register.
This clause identifies the regulation to be amended, namely the Crimes (Sentence Administration) Regulation 2006.
Clause 4 — New section 6
Clause 4 inserts new section 6 into
the Crimes (Sentence Administration)
Regulation 2006. New
section 6 invokes the regulation making power in chapter 17, section 611 of the
Crimes (Sentence Administration) Act 2005 to modify the transitional
arrangements in the Crimes (Sentence Administration) Act 2005. The
modifications are set out in schedule 2 of clause 5 (discussed
below).
New section 6(2) of the regulation expires the section and
schedule 2 of the regulation on the day the Corrections Management Act
2007 commences. At that time the Remand Centres Act 1976 will be
fully repealed and chief executive will have the authority to make provision for
remandees’ clothing without the need for the regulation.
Clause 5 — New Schedule 2
Schedule 2 of the regulation amends
the Crimes (Sentence Administration)
Act 2005 by introducing a
modification to chapter 17.
Section 610A authorises the chief executive
to decide that all remandees must wear clothing provided by the chief executive.
The decision may be made if one or more of the considerations stipulated in
(1)(a) to (d) make it necessary to exercise the power. The considerations are
discussed in the outline above.
Section 610A does not oblige the chief
executive to make a decision for each remandee on a case by case basis. A
decision may apply to all remandees. Conversely, the provision does not prevent
the chief executive from deciding that all, some or particular remandees may
wear their own clothing, or allowing certain types of remandees’ own
clothing to be worn in correctional facilities or when travelling from
correctional facilities to court.
Section 610A(2) invokes section 88 of
the Legislation Act 2001. Under section 88 the effect of a transitional
law, or validating law, continues after the law is repealed. However, section
88 does not oust the effect of legislation that modifies or replaces the
transitional law.