No Confidence Motion: ACT Minister for Corrections

Speech to Open the Debate:

So soon after rising to move a motion of no confidence against the minister, sadly I must do so again. When the Alexander Maconochie Centre first opened, Canberrans and the international community were promised that this would be a human rights-based prison, one that would conform to modern rehabilitative ideals.[1]

As we know, this talk of a human rights-compliant prison has just become a way for the Labor-Greens government to push a narrative that they care about some of the most vulnerable in our community. In reality, they are preening false feathers. The prison has been riddled with problems from its inception. Despite warnings from experts, the Labor government drastically underestimated how many beds would be needed, and this short-sightedness has caused problems that have continued to cascade from its opening to this day.

The Inspector of Correctional Services has determined that the human rights of a female Indigenous detainee have been breached.[2] Under our system of government, Minister Gentleman is responsible for this breach, and he must be held to account.

The breaching of just one human right is a serious issue. Unfortunately, this is not the only area where the prison is in breach of human rights or territory legislation and corrections policy. In the time I have, I will outline many more areas where the prison is operating below acceptable standards and guidelines for the treatment of prisoners. Before outlining the failings of this government in relation to our prison, I would first like to review a general history of human rights and corrective standards, both national and international, and how they relate to Canberra’s prison.

In 1955, the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners. After a five-year review process beginning in 2011, these rules were updated and became known as the Nelson Mandela Rules to honour the legacy of the late President of South Africa. They were adopted by the UN General Assembly in 2015.[3]

In 1978 the first edition of the Minimum Standard Guidelines for Australian Prisons was published, based directly on the UN Standard Minimum Rules for the Treatment of Prisoners.[4] These standards were revised in 2012 and again in 2018.[5]

When the Australian guidelines were revised in 2018, the Nelson Mandela Rules were again considered. Additional consideration was given to the impacts of other UN conventions, such as the Optional Protocol to the Convention against Torture or OPCAT.[6] The objective of OPCAT is to improve how people’s human rights are protected when they are detained. It does this by providing for a rigorous process of independent inspections of all places of detention in a country’s jurisdiction.[7]

Australia ratified OPCAT in December 2017 and is required to be fully compliant with OPCAT by January 2022 at the latest.[8] Locally, our adult corrections system is governed by the Corrections Management Act, the ACT Human Rights Act of 2004, and the ACT Standards for Adult Correctional Services.

To summarise: The UN first created rules around the minimum treatment for prisoners. These were updated in 2015 and named the Nelson Mandela Rules. Australia has created its own standard guidelines for Australian prisons. The Nelson Mandela Rules were the basis for these guidelines. Subsequent revisions also took into consideration OPCAT, which Australia ratified in 2017 and must fully implement by January 2022.

I wish to highlight the following: the objective of OPCAT is to improve how people’s human rights are protected when they are detained. To ensure this is happening, inspectors review places of detention such as the AMC to make sure they are compliant with human rights. Australia is to be fully compliant with OPCAT by January 2022. That is three months away. We ratified OPCAT in 2017, and just this year our Minister for Corrections is found to be responsible for a serious human rights abuse.

A study of the Nelson Mandela Rules reveals that the AMC is also not meeting several other international minimum standards for the treatment of prisoners.[9] Consider the following:

Rule 11b: ‘Untried prisoners shall be kept separate from convicted prisoners’. This has been an ongoing problem at the AMC for years, and there has been a number of instances where remanded detainees with the presumption of innocence have been accommodated with sentenced detainees and subsequently beaten by them.[10]

Rule 52: ‘Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary’. I quote from the Inspector’s report of the strip search in January this year: ‘A draft Searching Strategy from January 2021 that the Office of the Inspector of Correctional Services has examined states that all detainees will be strip searched on arrival to the Crisis Support Unit … routine strip searching on admission to the Crisis Support Unit does not have a lawful basis under the Corrections Management Act 2007’.[11] In addition: ‘the practice of mandatory strip searching is also inconsistent with the H[uman] R[ights] Act’.[12]

Rule 70: ‘The prison administration shall inform a prisoner at once of the serious illness or death of a near relative or significant other. Whenever circumstances allow, the prisoner should be authorised to go, either escorted or alone, to the bedside of a near relative or significant other who is critically ill, or to attend the funeral of a near relative or significant other’.

The escalation that led to the strip search of the female detainee on 11 January 2021 can be directly traced back to the refusal to allow this woman to attend the funeral of her grandmother and to attend to Sorry Business with her family and community. The refusal was declined ‘on the basis of logistical issues associated with the short notice of the application with full funeral details including the date and time’.[13]

As everyone understands, deaths often happen suddenly. Funeral arrangements take days to organise and frequently come together with very short notice. Using an excuse of ‘short notice’ as the reason to decline an application to attend the funeral of a close family member is disgraceful. Here is the timeline of what happened as outlined in the Inspector’s report:

The woman was informed of her grandmother’s death on Wednesday, 6 January. On Thursday the 7th, she received assistance from an Indigenous Liaison Officer or ILO to fill out a leave application so she could attend the funeral. The application required the date and time of the funeral. At that time, the funeral details had not been confirmed, so the leave application could not be completed.

On Friday, 8 January, there were no ILOs on duty to follow up on the application. At some point that day, there was a request from a corrections officer to confirm that the funeral would be at 2pm the following Tuesday. As there were no ILOs on duty to respond, there was no confirmation. ILOs do not work on weekends.

Monday morning, 11 January, was the first opportunity for an ILO to follow up on the leave application, which was completed and provided to the Deputy Commissioner Custodial Operations. It was then decided that due to staffing struggles, recent lockdowns and short notice, the application would be refused.[14]

To sum up, the detainee was told about her grandmother’s passing away on Wednesday, there were no confirmed details for the funeral on Thursday, there were no ILOs to assist with the application on Friday, no ILOs work weekends, and by Monday when the application was completed, it was too late to be approved. Based on this, I reject completely the attempt to blame the timing of the application and instead suggest that the blame is squarely on the government for the short-staffing and for not insuring there were measures in place to advance an application to attend a funeral across three whole days.

For a funeral, particularly the funeral of an Indigenous detainee, far more effort should have been made to allow the application to be completed and brought to the attention of management in a timelier way. I call on the minister to detail what special or beyond-the-call-of-duty measures, if any, were taken to try to get this woman to the funeral of her grandmother.

Rule 95: ‘Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every prison, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of prisoners in their treatment’.

In 2019, the Inspector noted that an Incentives and Earned Privileges (IEP) policy was being drafted.[15] The government said that it would be notified and implemented by June 2020,[16] but the government pushed it back to April 2021 and then to June 2021.[17] It is now October 2021,[18] and it is still neither notified nor implemented.

Rule 98: ‘So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn an honest living after release’. I find it hard to believe that many of the employment opportunities within the AMC will maintain or increase a detainee’s ability to earn an honest living after their release. Out of 35 paid job titles available within the AMC, 15 of them are primarily cleaning positions. These are good skills to have, but not very competitive in the job market.

Rule 112: ‘Untried prisoners shall be kept separate from convicted prisoners’. I could argue the government is breaching at least another half dozen standards. It is failing the prison and everyone in it and has been doing so for years.

This government has shown that in its current state, it is incapable of enacting the change necessary to be fully human rights compliant, not just with international standards but with our own territory standards. Once again, I call for the minister to divest himself of the corrections portfolio if there is to be any hope of reaching the once inspirational ideals of the Alexander Maconochie Centre.

Madam Speaker, I commend this motion to the Assembly.

Speech to Close the Debate:

I am disappointed that this motion had this outcome. I want to reiterate though that this motion has still shone a light on the failings of this government when it comes to upholding human rights. Labor and the Greens have just demonstrated that, deep down, they really don’t care about human rights.

To many in our community, the prison is a self-contained bubble where rules apply differently, and to an extent, this perception is understandable. But I wish to impress on those listening, and to anyone with a stake in our prison management, that this prison is in our city; it is in Canberra, our home.

Canberrans can be rightfully proud of many aspects of this city. Unfortunately, we have a number of areas where we do not perform so well, and one of them is our prison. As it is only a few days since the birthday of Mahatma Gandhi, it seems appropriate to note this quote from him: ‘The true measure of any society can be found in how it treats it most vulnerable members’. The detainees in our prison are undoubtedly some of our most vulnerable members.

I encourage anyone listening to see for themselves the Nelson Mandela Rules, the Bangkok Rules and the ACT Standards for Adult Corrections and see just where this government is falling short in its commitment to human rights and minimum standards. In my prior speech, I only had time to name a few, but there are many more.

I am not surprised that the Greens did not support this motion even though they pay even more lip service to human rights than Labor. It should be brought to the attention of the public that, if there weren’t a policy framework requiring mandatory strip searching on admission to the Crisis Support Unit, and if there had been a functioning body scanner, this whole scenario could have been avoided.

The Government has committed to the procurement of two body scanners in their response to the Inspector’s report. What they did not own up to – and this is very typical of them – is the fact that the AMC did at one point have a functioning body scanner but that it had been turned off in 2018 under the leadership of Mr Rattenbury. That’s right. The Greens minister who loves to talk about human rights is the one who turned off the body scanner that protected human rights.

The AMC had a body scanner as early as 2010. In 2014 it was looked on favourably enough that the Human Rights Commissioner recommended to Mr Rattenbury that its usage at the prison be expanded. Reflect on that for a moment. The Human Rights Commissioner recommended that the use of the body scanner be expanded. Mr Rattenbury was responsible for its deactivation and provided no replacement.

This does not sound like a government that keep human rights at the forefront of their minds. This does not sound like a prison that is human rights compliant. Let us do away with the fantasy that it is. The aspiration to be compliant should and must remain, but until this government can improve the state of the prison, they have lost the privilege to claim that it is human rights compliant.

Let’s stop pretending that Labor and the Greens care about human rights. Let’s stop pretending that the prison is human rights compliant. Let’s just stop all of this pretence.

In closing, I would like to thank the officers and staff at the prison for the exceptional work they do in such hard circumstances. I support the work they do, and it heartens me that, in every Inspector’s report, the officers are praised for their bravery and professionalism. I too recognise it and wish to say to them that I will have their backs and continue working to improve the conditions at the AMC.

Thank you.

[1] http://info.cmtedd.act.gov.au/archived-media-releases/mediac26c.html?v=7402&s=177. [2] ACT Inspector of Correction Services, ‘Report of a Review of a Critical Incident: Use of Force to Conduct a Strip Search at the Alexander Maconochie Centre on 11 January 2021’, Canberra, 31 Aug. 2021, p. 4. [3] https://www.un.org/en/events/mandeladay/mandela_rules.shtml. [4] ‘Standard Guidelines for Corrections in Australia’, 2012, p. 3. [5] ‘Guiding Principles for Corrections in Australia’, 2018. [6] Ibid., p. 4. [7] Australian Human Rights Commission, ‘Implementing OPCAT in Australia’, 2020, p. 11. [8] Ibid. [9] All rules can be found in United Nations Office on Drugs and Crime, ‘The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)’, 2015, pp. 2ff. [10] Legislative Assembly for the Australian Capital Territory, Standing Committee on Justice and Community Safety, Inquiry into Annual and Financial Reports 2019–2020 and the ACT Budget 2020–2021, transcript of evidence, 19 Feb. 2021, p. 80. [11] ‘Report of a Review of a Critical Incident: Use of Force to Conduct a Strip Search at the Alexander Maconochie Centre on 11 January 2021’, pp. 16, 18. [12] Ibid., p. 16. [13] Ibid., p. 10. [14] Ibid., pp. 9–10. [15] ACT Inspector or Correctional Services, ‘Report of a Healthy Prison Review of the Alexander Maconochie Centre’, Canberra, Nov. 2019, p. 20. [16] ACT Government, ‘Government Response to the Report of a Review of a Correctional Centre by the ACT Inspector of Correctional Services – Health Prison Review of the Alexander Maconochie Centre 2019’, 2020, p. 16. [17] ACT Inspector of Correctional Services, ‘Implementation of Recommendations from the 2019 Healthy Prison Review of the Alexander Maconochie Centre: Status as at 31 December 2020’, p. 2. [18] As of 4 Oct. 2021, it is not on the register