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Correctional Service Bill 2009

REPUBLIC OF NAURU

CORRECTIONAL SERVICE BILL 2009

EXPLANATORY MEMORANDUM

1. BACKGROUND

The Nauru Prison is presently governed by the Nauru Gaol and Prison Ordinance 1921 and the Gaol and Prison Rules 1921, and was until recently managed by the Nauru Police Force.

The Government of Nauru has identified a need to modernise the laws and administrative arrangements in relation to the Prison, and has recently separated the Nauru Police Force and the Prison services.

This Bill formalises the new arrangements by repealing the old legislation, establishing the Correctional Service, and vesting responsibility for the Correctional Service in the Ministry of Justice.

The Bill is loosely modelled on the Solomon Islands’ Correctional Services Act 2007, but has been substantially modified to fit the needs and circumstances of Nauru.

The Bill has been prepared whilst taking into consideration best practice in the management of prisoners, including all relevant internationally accepted standards for the treatment of prisoners.

2. OBJECTIVE AND EFFECT OF THE LEGISLATION

The general policy objective of the Correctional Service Bill 2009 is to make provision for the establishment and administration of the Correctional Service.

A major priority of the Bill is the safety of the community, the safety of staff and visitors of the correctional centre, and the safety of prisoners.

The Bill would provide for the management of offenders within a safe environment and according to their risks and needs whilst also addressing and providing for their rehabilitation.

In achieving these objectives, the Correctional Services Bill 2009 will replace the Nauru Gaol and Prison Ordinance 1921, Goal and Prison Rules 1921 and Suspension of Sentences Ordinance 1921, and bring Nauru in line with the modern approach to corrections.

3. NOTES ON PROVISIONS

PART I -- PRELIMINARY

Short title and commencement

Clause 1 specifies the short title of the Bill.

Repeal

Clause 2 specifies that the Nauru Gaol and Prison Ordinance 1921, Gaol and Prison Rules 1921 and Suspension of Sentences Ordinance 1921 are to be repealed.

Interpretation

Clause 3 defines a number of legal terms that are referred to in the Bill.

Purposes and Objects of the Act

Clause 4 sets out the purposes and objects of the Bill which in summary are to provide for the establishment, maintenance and operation of the Correctional Service; assist the rehabilitation of prisoners and their integration back into the community; ensure that terms of imprisonment are administered in a fair and effective manner; and maintain the safety of the community, prisoners and officers and promote public confidence in the Correctional Service.

PART II –CORRECTIONAL SERVICE

Establishment of the Correctional Service

Clause 5 provides for the establishment of the Correctional Service.

Establishment of correctional centres

Clause 6 provides for the establishment of correctional centres, which is the new term for ‘prison’.

The term ‘correctional centre’ is defined in clause 3 as meaning ‘any land, building, property, vessel or vehicle declared to be a correctional centre or a temporary correctional centre under Part II of the Correctional Services Act 2009’.

This clause also specifies the circumstances in which prisoners may be kept in a temporary correctional centre.

Chief Correctional Officer

Clause 7 provides for the appointment of a Chief Correctional Officer of the Correctional Service and specifies that the Chief Correctional Officer is the head of the Correctional Service and has the administrative command and direction of all correctional officers. The clause further requires the Chief Correctional Officer to ensure the safety, security and good governance of the Correctional Service and to maintain control of all prisoners.

This clause enables the Chief Correctional Officer to delegate his powers and to resign his office with three months notice.

Paragraph (f) of sub-clause 7(2) provides that the Chief Correctional Officer shall be accountable to the Secretary for Justice and the Chief Secretary for the performance of his duties.

Chief Correctional Officer’s responsibilities

Clause 8 specifies additional responsibilities of the Chief Correctional Officer of the Correctional Service not otherwise specified in clause 7. These responsibilities are listed to provide administrative guidance, but do not create legally enforceable rights or duties (see clause 57).

PART III – ADMINISTRATION

Officers and employees of the Correctional Service

Clause 9 ends the temporary appointment of prison officers as reserve officers of the Nauru Police Force, and creates the new position of ‘correctional services officer’. The clause also provides for different ranks within the correctional service, and specifies the sources of laws governing the employment of officers and employees of the Correctional Service.

Conditions and proscriptions applicable to officers

Clause 10 provides that all officers are shift workers and may be recalled to duty at any time and to any location.

The clause seeks to prevent officers having conflicts of interest, by prohibiting officers from having business relationships with prisoners, forming other relationships with prisoners that may compromise the security or good governance of the correctional centre, and from receiving fees or gifts in connection to their employment.

Responsibilities of officers

Clause 11 specifies the obligations of all officers of the Correctional Service: to exercise the powers and duties conferred on them under the Act, to obey all lawful directions from a senior officer, and to carry out their duty with proper care and diligence and with due respect for the rights of prisoners.

Discipline of officers

Clause 12 provides that there shall be disciplinary offences applying to all officers, as prescribed under the Act and in the regulations. Proceedings in relation to disciplinary offences are to be conducted fairly in accordance with the rules of natural justice, and officers may appeal determinations of disciplinary offences to the Public Service Appeals Board. The clause also provides certain protections to officers in relation to their pay entitlements in the event of a disciplinary proceeding.

Officer protection from personal liability

Clause 13 exempts an officer from personal legal liability for any injury or damage suffered by someone as a result of the officer’s exercise in good faith of a power or function conferred under the Act.

Use of police officers as correctional officers

Clause 14 provides that the Chief Correctional Officer may request of the Director of Police to provide police assistance to the Correctional Service whenever necessary, and that a police officer shall have the same powers and responsibilities as a correctional officer when providing assistance to the Correctional Service.

PART IV – INSPECTIONS AND VISITS

Inspections by the Magistrate or Ombudsman

Clause 15 provides that the Resident Magistrate or, if Parliament has made provision for an Ombudsman, the Ombudsman, shall conduct an inspection of each correctional centre at least twice in each calendar year to assess compliance with the provisions and objectives of the Correctional Services Act 2009 and shall submit a report on each inspection to the Chief Correctional Officer and the Minister.

This clause is intended to ensure that the Act is properly administered and that the correctional centre is managed in accordance with the Act, by making it compulsory for an independent person to conduct an inspection twice a year. The clause also aims to ensure that such information is accessible to the public, by requiring the Minister to table all inspection reports in Parliament.

Inspections on behalf of the Minister

Clause 16 provides that the Minister may request any person to inspect a correctional centre. This clause means that in additional to the mandatory periodic inspections under clause 15, the Minister can arrange for additional inspections and reports for particular purposes, for example, if he wants a medical officer to assess the sanitary conditions within the correctional centre.

Right of entry and inspection by judges, Resident Magistrate, Ombudsman

Clause 17 provides that judges, the Resident Magistrate, the Ombudsman and any person authorised in writing by the Minister or by the Ombudsman may enter and inspect a correctional centre at any time.

Visits by religious representatives

Clause 18 provides that the Chief Correctional Officer may authorise persons nominated by the religions and denominations of the prisoners at a correctional centre as religious representatives for the correctional centre. The clause allows such religious representatives to meet with prisoners, conduct religious ceremonies in a correctional centre, and provide counselling to prisoners. The clause protects the prisoners’ freedom of religion by providing that a prisoner shall not be required to attend a religious service nor to meet with any religious representative.

PART V – ADMISSION AND MANAGEMENT OF PRISONERS

Least restrictive conditions

Clause 19 provides that prisoners are to be placed in the least restrictive conditions suitable to their classification. Those administering the Act are expected to adhere to this provision, however it does not create any legally enforceable rights or duties (see clause 57).

Lawful custody

Clause 20 provides that prisoners are to be legally detained by the Correctional Service and that full and accurate records of prisoner’s warrants, sentences imposed by the Courts, discharges, bails and fines are to be maintained.

This clause also provides that prisoners shall be admitted into custody on the authority of a warrant or arrest, order of a court, written refusal to grant bail by a lawfully authorised police officer, or on the authority provided for by any other law. Upon admission, all prisoners are deemed to be in the lawful custody of the Chief Correctional Officer.

At the discretion of the Chief Correctional Officer, a child below the age of six months may be admitted with the mother who is lawfully detained. The Chief Correctional Officer may also admit a child over the age of six months but under the age of two years with the mother who is lawfully detained, provided that certain conditions are met.

Admission of prisoners

Clause 21 specifies the reception process in relation to the admission of a prisoner into a correctional centre and provides for the segregation of prisoners.

Information to be provided

Clause 22 specifies what information that is to be provided to a prisoner upon admission into a correctional centre.

Classification of prisoners

Clause 23 specifies that all prisoners shall be classified, and sets out the objectives of the classification of prisoners. This clause also provides that the classification of a prisoner shall not affect their entitlement to all of the rights protected under clause 25, but may affect their access to regulated privileges.

The clause requires Cabinet to make regulations providing for the two-part classification of prisoners. This means for example that the regulations might provide for prisoners to be classified as serving a criminal sentence, serving a civil sentence, or detained on remand (A, B or C) and to be classified as high, medium or low risk (1, 2 or 3), so that each prisoner would have a two-part classification such as "A-2" (criminal sentence, medium risk).

Obligations of prisoners

Clause 24 provides that prisoners are obliged to comply with lawful directions and with the Operating Policies and Procedures, and are obliged to refrain from committing a correctional centre offence.

Rights of prisoners

Clause 25 sets out the rights to which each prisoner is entitled. These rights include adequate bedding, washing and sanitary facilities, food and water, clean and sufficient clothing, light, exercise, visits and access to legal representatives.

The only right that may be subject to some limitations is the right to receive visits, as the clause provides in sub-clause (2) that Cabinet shall make regulations prescribing the rules to be applied to correctional centre visits. This is in recognition of the fact that it is unfeasible for the correctional centre to be managed in such a way that unlimited visits are allowed at any time. However sub-clause (2) stipulates that the regulations must allow for at least two visiting days per week and for visits of at least one hour duration. The clause also provides in subclause (3) that the right to visits may be restricted by way of punishment (it is the only right that can be restricted).

All prisoners are entitled to the rights in clause 25 at all times. The Bill provides elsewhere that the withdrawal or infringement of prisoners’ rights is not a permissible form of punishment (clause 33), that rights are not affected by the classification of a prisoner (clause 23), and that all officers shall carry out their duty with due respect for the rights of prisoners (clause 11).

Prisoner deaths

Clause 26 specifies that the Correctional Service has a duty to prevent the death of a prisoner due to an unnatural cause, all prisoner deaths must be reported, an inquest shall be conducted in relation to all prisoner deaths; and all officers must assist as required with any police investigation or inquest into the death of a prisoner.

PART VI – MEDICAL ISSUES

Standard of treatment

Clause 27 provides that medical treatment shall be provided for prisoners to a community standard.

Medical test or treatment

Clause 28 specifies that prisoners shall be notified of the results of any medical test or treatment and provided with any necessary support.

Spread of disease

Clause 29 provides that the Chief Correctional Officer shall ensure that conditions within a correctional centre do not facilitate the spread of disease, and that he must implement any recommendations made by the Ministry for Health aimed at reducing the risk of the outbreak of disease.

Sub-clause (3) of clause 29 provides that information about the medical condition of any prisoner shall be disclosed to the Chief Correctional Officer by the treating medical officer or by the prisoner as soon as possible if action is or may be required to ensure the safety and well-being of officers, prisoners, visitors or any other person.

PART VII – DISCIPLINE OF PRISONERS

Correctional centre offences

Clause 30 provides that the Cabinet shall make regulations in relation to correctional centre offences by prisoners.

Correctional centre offence proceedings

Clause 31 specifies that all hearings and determinations in correctional centre offence proceedings may be conducted by the Chief Correctional Officer or a tribunal established and empowered by regulations. All such offences must be dealt with in a fair and timely manner, and proceedings must accord natural justice to prisoners. The clause also provides that a prisoner is not entitled to legal representation in relation to a correctional centre offence.

Sub-clause (5) of clause 31 provides that there is no right of appeal from a determination of correctional offence proceedings, except where provision is made by regulation for appeal to a tribunal. Read together with sub-clause (1), this means that unless and until Cabinet provides for a tribunal, all correctional centre offences will be heard and determined by the Chief Correctional Officer, and there can be no appeal. If Cabinet creates a tribunal by regulation, that tribunal may either be the first instance that hears and determines correctional centre offences (from which there will be no appeal) or it may hear and determine matters only on appeal from first instance decisions of the Chief Correctional Officer (in which case it will be the final instance and there shall be no further appeal).

Penalties

Clause 32 places limits on the penalties that may be imposed by the Chief Correctional Officer for a disciplinary offence. Such penalties may not be more severe than: forfeiture of up to 90 days’ remission; separation for a period not exceeding 28 days; or removal or restriction of regulated privileges for a period not exceeding 60 days.

Improper punishment

Clause 33 effectively protects a prisoner’s constitutional right to freedom from inhuman or degrading treatment or punishment (Article 7 of the Constitution), by providing that no prisoner may be subject by way of punishment to: corporal punishment, the use of instruments of restraint, or the withdrawal or infringement of their rights under section 25.

Note that instruments of restraint may be used for the purposes of security and control under certain circumstances (see clause 36), but not for the purposes of punishment.

PART VIII – SECURITY

Objectives of correctional centre security

Clause 34 sets out the objectives of the correctional centre security system, and is for the purpose of administrative guidance only (see clause 57). The security objectives include the prevention of prisoner escape; the provision of a healthy, safe and secure working and living environment for staff, visitors and prisoners; and the control of any article that may pose a risk to the good governance, order and security of the correctional centre.

Use of force

Clause 35 provides that officers may not use force against any prisoner, except in the prescribed limited circumstances, including self-defence, prevention of escape, or when a prisoner is resisting an officer.

The clause provides that when the use of force is permitted an officer may not use more force than is necessary in the circumstances, and shall make a report of all relevant matters to the Chief Correctional Officer. Each officer must receive the appropriate training in the use of force.

Use of instruments of restraint

Clause 36 prohibits certain types of instruments of restraint, and restricts the use of others. Like clause 33, this clause aids the protection of the Article 7 right of freedom from inhuman or degrading treatment, by limiting the circumstances in which instruments of restraint may lawfully be used against prisoners, and prescribing conditions of their use, such as the requirement that an instrument of restraint may only be used for the minimum time necessary and must be applied in a manner which preserves the dignity of the prisoner as far as is practicable.

The term ‘instrument of restraint’ is defined in clause 3 as meaning ‘handcuffs, ankle cuffs, batons, strait jackets, chemical substances and any other item or device prescribed by regulation’.

Protective equipment

Clause 37 specifies that protective equipment may only be used by correctional officers on the order of the Chief Correctional Officer or a Senior Correctional Officer for limited and prescribed purposes, including for preventing escape or for preventing any violence to an officer or other person, if the officer or person is in danger of suffering bodily harm. No officer may be issued with protective equipment unless he has been trained in relation to its use.

The term ‘protective equipment’ is defined in clause 3 as meaning ‘shields, helmets, batons, handcuffs, body armour, instruments of chemical restraint, or other item or device used for the protection of officers from physical injury’.

Searches

Clause 38 gives officers the power to search certain persons and property, and provides that searches must be conducted by an officer of the same gender as the person being searched. Under this clause the Chief Correctional Officer may refuse to allow any article or thing to be brought into, or to remain in a correctional centre, if he is of the opinion that it may compromise the safety, security or good governance of a correctional centre.

Searches of visitors

Clause 39 provides that a person who seeks entry to a correctional centre as a visitor may be required to submit to a pat search as a condition of entry if asked to do so by a correctional officer. An exception is made for judges, the Resident Magistrate and the Ombudsman, who may be searched only with their consent, and may not be prohibited from entry for refusal to undergo a search.

Prohibited article

Clause 40 specifies that Cabinet may by regulation declare any property to be a ‘prohibited article’, and that every prohibited article shall be seized.

PART IX – SKILLS, WORK AND RECREATION

Development of skills

Clause 41 provides that all prisoners are to be given opportunities to develop personal and employment skills to assist their effective rehabilitation and reintegration into the community. This clause does not create any legally enforceable rights or duties (see clause 57).

Approved correctional centre work

Clause 42 provides that all prisoners may be requested to undertake work within or outside of a correctional centre in compliance with the regulations. It is important to note that under this clause prisoners may only be requested to undertake work, and not compelled, by reason of Article 6 of the Constitution (freedom from forced labour), which permits a person to be compelled to perform labour required by the sentence or order of a court (such as community service) or labour required of a prisoner for the cleanliness and hygiene of the prison (see clause 43), but does not allow prisoners to be forced to perform work in any other circumstances.

Cleaning of facilities

Clause 43 provides that all prisoners shall be required to keep their cells and rooms, common areas, kitchen, toilet and bathing facilities, furniture, clothing and utensils clean and in good repair.

Recreation and development

Clause 44 provides that the Chief Correctional Officer and all officers are to encourage prisoners to maintain their mental and physical health, to use leisure time constructively, and to develop positive social skills. This clause is for the purpose of administrative guidance, and does not create any legally enforceable rights or duties (see clause 57).

PART X – RELEASE OF PRISONERS

Discharge of prisoners

Clause 45 provides that the Chief Correctional Officer shall be responsible for ensuring that all prisoners are discharged on their correct date, and empowers the Secretary for Justice to determine any dispute over such date.

Remission of sentence

Clause 46 provides that except for prisoners sentenced to life or to sentences of less than one month, prisoners may through good conduct and industry earn remission of up to one third of their sentence. The manner in which points for remission shall be earned and calculated will be prescribed by regulation. However, remission that has been earned may also be forfeited – see clause 32. The remission (if any) earned and forfeited by each prisoner must be regularly calculated and records kept of each prisoners’ effective sentence and expected release date, taking into account any remission they have earned.

Unauthorised absence of prisoner

Clause 47 provides that any unauthorised absence from a correctional centre shall not count as time served in relation to the sentence.

Review of sentence for health reasons

Clause 48 provides that where a prisoner is suffering from an illness, disability or other condition, or there are other special circumstances, the Court that sentenced the prisoner may, at the request of the Minister, review the sentence of the prisoner and make orders for the prisoner’s release or for their removal to suitable alternative accommodation.

PART XI – OFFENCES

Harbouring

Clause 49 provides for the offences of knowingly harbouring, employing or assisting a prisoner who is on unauthorised absence from a correctional centre, and prescribes a penalty of a $1,000 fine or two years’ imprisonment or both.

Unlawful possession or disposal of Correctional Service property

Clause 50 provides the offences of being in unlawful possession, unlawfully purchasing or receiving and aiding or abetting in the unlawful selling or disposing of property or equipment belonging to the Correctional Service. It is also an offence to unlawfully sell or dispose of Correctional Service property. Penalties for these offences range from a fine of $500-$2,000 and six months’ to two years’ imprisonment.

Offences in relation to prohibited articles

Clause 51 creates offences in relation to the possession, sale, or introduction into a correctional centre of a prohibited article. However, this clause also provides that no offence is committed unless there is a notice under the hand of the Chief Correctional Officer for viewing by all prisoners and by members of the public specifying what articles have been declared prohibited. Penalties: $1000 fine or two years’ imprisonment or both.

Failure to leave a correctional centre

Clause 52 creates the offence of failing to leave a correctional centre when directed to do so by a correctional officer, and imposes a penalty of $500 fine or six months’ imprisonment or both.

Disorderly manner in a correctional centre

Clause 53 makes it an offence to behave in a disorderly manner in a correctional centre, and imposes a penalty of $500 or six months’ imprisonment or both.

Resisting or obstructing an officer

Clause 54 creates the offence of resisting or obstructing an officer in the performance of their duties, and attracts a penalty of $500 or six months’ imprisonment or both

Arrest without warrant

Clause 55 provides a person who commits an offence under Part XI may be arrested without warrant.

PART XII – MISCELLANEOUS

Regulations

Clause 56 provides that the Cabinet may make regulations in relation to all matters that are required or permitted under the Correctional Service Act or are necessary or convenient to be prescribed for giving effect for the purposes of the Correctional Services Act, and sets out a non-exhaustive list of matters that may be provided for in regulations.

Administrative guidance

Clause 57 provides that the provisions of clauses 4, 8, 19, 23(2), 29(1), 34, 41 and 44 are intended to provide guidance in the administration of the Act and that these provisions do not create, confer or impose any right, entitlement or duty enforceable at law. This provision is included because the sections and sub-sections listed within this clause are all matters that cannot readily be enforced, such as objectives. Those responsible for administering the Act would be expected to adhere to these provisions as far as practicable, but no person would be able to bring a legal action for breach of any of these provisions.

Administration of Act

Clause 58 provides that the Act shall be administered by the Minister responsible for justice.

Transitional arrangements

Clause 59 prescribes arrangements for the interim continuance of the prison Standing Orders, and provides for those Standing Orders to cease to have effect when Cabinet has made regulations under the Act. After regulations have been made, those Standing Order matters that are not covered in the regulations can be included in a manual of Operating Policies and Procedures issued by the Chief Correctional Officer.

Savings

Clause 60 saves the effect of anything lawfully done under the ordinances and rules that would be repealed by this Bill, and makes certain provisions for references to prison matters in other laws to be interpreted in accordance with this new law.

Act to bind the Republic

Clause 61 provides that the Act will bind the Republic.