28 February 2023

Discretion to not report good behaviour breaches, strip search changes backed by committee inquiry

| Claire Fenwicke
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Alexander Maconochie Centre

Corrections officers could use their discretion around reporting good behaviour breaches under proposed amendments to current law. Photo: File.

Corrections officers could soon have the power to not report good behaviour bond breaches under proposed legislation changes.

However, there are fears that perpetrators of domestic and family violence could use it to their advantage if appropriate guidelines aren’t implemented.

A committee inquiry into the Corrections and Sentencing Legislation Amendment Bill 2022 has handed down seven recommendations but has supported all suggested changes overall.

One aspect would see good behaviour order (GBO) breaches not result in potential court sanctions, with the bill proposing to instead allow community corrections officers to choose not to report the breach to a sentencing court.

“This discretion is based on elements of an existing measure that applies during a COVID-19 emergency,” the report stated.

“It is designed to reduce pressure on the courts and to promote rehabilitation by offenders.”

While the discretion framework is still being developed, the bill outlines that corrections officers could choose to issue a warning over a breach rather than let the Sentence Administration Board know about it. The breach would have to be recorded in writing.

In submissions to the committee inquiry, Legal Aid ACT supported the change as it felt it would help avoid unnecessary hearings which could result in trauma for victims and the defendant where a breach isn’t significant.

It suggested the guidelines include consideration of the offender’s personal circumstances, the nature and circumstances of the offence, the offender’s history of compliance with the GBO, the likelihood that any victim of the offender or their family will be subject to violence or harassment, action taken previously for any other breaches of the GBO, and the importance of both protecting the community and rehabilitating the offender.

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However, the Domestic Violence Crisis Service was concerned that other important factors could be missed in the guidelines without full consultation.

“In the context of coercive control and patterns of behaviour some may use in perpetrating domestic, family and intimate partner violence, we hold concern that this amendment being instituted without the opportunity to assess the guidelines may lead to missed information about the pattern of behaviour which sits in a broader context than the corrections officer would know and, as such, would be unable to consider it alongside the broader information it holds,” it submitted.

The Victims of Crime Commissioner (VOCC) also voiced concerns about whether a breach of a GBO could increase the risk of harm to victims and said a person’s right to security had to be taken into account under the ACT Human Rights Act 2004.

“The experience of the VOCC’s office has highlighted that non-compliance with orders may comprise a continued form of abuse, where a perpetrator demonstrates to a victim that they are able to breach orders or other legal obligations with little to no repercussion,” it submitted.

It stressed corrections officers should be supported in applying the new discretion through adequate resourcing and training.

The committee recommended stakeholders – including the Aboriginal Legal Service, Domestic Violence Crisis Service, VOCC and legal representatives – be consulted on the development of the guidelines, as well as making sure corrections officers are adequately trained and resourced to apply them.

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Strip search rules could also be changed to remove confusion and clarify their use at corrections centres.

The amendment would remove the requirement that a strip search can only be conducted if there are reasonable grounds that the detainee is concealing a seizable item or a search is needed.

However, it doesn’t mean all detainees would be automatically strip-searched on admission.

The ACT Ombudsman stressed there should be an emphasis on prioritising less intrusive forms of strip-searching and communication with relevant parties such as ACT Policing to make sure there’s no “unnecessary repetition” of searches.

“There should be no delay in efforts by ACT Government authorities to move to less intrusive forms of searching, such as body scanning technology, which would achieve the same outcomes,” it submitted.

“The [Ombudsman] encourages a transition to less intrusive forms of searching as soon as possible, and no later than the scheduled two2-year review.”

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Changes in relation to searches of non-detainees have also been examined, removing the requirement that a “view” has to be formed about the prudence of searching someone before carrying it out.

“This is because any person entering the centre could bring in items that represent safety or security risks, and this risk can only be addressed by conducting a search,” according to the bill’s explanatory statement.

The bill also proposed changing the existing powers of the Justice and Community Safety (JACS) Director-General to allow them to make ACT correctional centres fully smoke-free.

It currently only has the power to ban smoking in certain areas of a correctional centre.

The Director-General would be required to make sure therapeutic supports are available to detainees to help them stop smoking before prohibiting smoking completely.

Community-based sentence transfers with all other states would also be made possible under the amendments. Currently, this arrangement is only in place with NSW.

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Tom McLuckie6:59 pm 28 Feb 23

So yet more non-reporting on our repeat offending in Canberra to align with the government narrative “there is nothing to see here”. Totally goes against the principal of open government policies. So a non custodial sentence given to a repeat offender who continues to reoffend can go on unreported at the discretion of a government official …. So much for evidence based justice policies in the ACT. Something to hide more like.

Finagen_Freeman12:55 pm 28 Feb 23

Yet more good behaviour orders to go unreported. Stats being manipulated. Courts kept in the dark. Yah for Barr(my) Canberra.

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