Justice Mossop of the Supreme Court of the Australian Capital Territory has found that an accused person, Alexander (a pseudonym), was imprisoned in contravention of section 19 of the Human Rights Act 2004 (ACT) (HRA) in circumstances where they were on remand and imprisoned with people who had been convicted. Alexander’s right to be separated from convicted prisoners was not restricted by the operation of section 44 of the Corrections Management Act 2007 (ACT) (CMA). Accordingly, his Honour found that the requirements for “special or exceptional circumstances” favouring a grant of bail under section 9D of the Bail Act 1992 (ACT) (Bail Act) were satisfied.
This summary considers the interaction between the CMA, the HRA and the Bail Act in respect of people on remand.
Alexander made an application for bail and review of a bail decision from the Magistrates Court.
On 18 January 2024, Alexander undertook a placement assessment at Alexander Maconochie Centre (AMC), Canberra’s prison [31]. AMC is run by ACT Corrective Services and as such, its policies and procedures are applicable to Alexander in accordance with the CMA. On induction, Alexander – who was noted to be vulnerable due to this being his first time in custody – made an application for protection and was accordingly imprisoned in a section of the AMC for people in prison that required a high level of protection. This section was comprised of half people on remand and half sentenced prisoners [29].
The Senior Director of Accommodation at AMC gave evidence that it was “the initial design of the AMC to separate remand and sentenced detainees” but “the safety and practicality of that was near impossible to manage”, meaning that the unit names “Remand Unit 1, Remand Unit 2 and Remand Cottage 2” were outdated and not representative of their current functionality [33].
Circumstances of accommodation
His Honour considered the application of the ACT Corrective Services Corrections Management (Remand Detainees) Policy 2019 (NI 2019-377) (Remand Detainees Policy) which provided that correctional centres “will consider all reasonable options to accommodate remand and sentenced detainees separately” in accordance with subsections 44(2) and 44(4) of the CMA.
His Honour noted that the language of the Remand Detainees Policy does not reflect the binding obligation imposed on correctional centres in section 44(2) of the CMA, which prescribes that “[t]he director general must also ensure that convicted detainees are accommodated separately from non-convicted detainees” [36].
His Honour considered the evidence indicating that AMC was attempting to operate within the resources and facilities available, but as a consequence, there was no attempt to separate people on remand from sentenced prisoners [34]. Accordingly, his Honour found that the Director-General, as the responsible member for the facility, had abandoned “the regime of accommodation in separate facilities” and instead had chosen “to house [Alexander] in a manner which the Director-General considered was the most suitable accommodation, taking into account the matters on the detainee placement form, including his safety” [38].
Interaction between HRA and CMA
Section 19(2) of the HRA provides that “[a]n accused person must be segregated from convicted people, except in exceptional circumstances”. However, human rights may still be reasonably limited if the limitation is set by law and “demonstrably justified in a free and democratic society” under section 28 of the HRA. In this judgment, his Honour examined the limit “set by law” under the CMA.
His Honour held that the above provisions in the Remand Detainees Policy do not comply with subsections 44(2) and 44(4) of the CMA. The former requires the Director General to ensure the accommodation separation, which “indicate[s] the existence of an obligation which is unqualified by questions of practicability” [55]. The language of this subsection is intentional, and it was clear “that the [CMA] has been carefully drafted so as to differentiate between the different gradations of obligation on the part of the Director‑General or other officers empowered by the Act” [55].
The power to depart from the obligation to ensure separation is found in subsection 44(4) of the CMA, which provides “the director general may give directions for different accommodation of a non-convicted detainee if the director general suspects, on reasonable grounds, that it is necessary to ensure the safety of the detainee or anyone else”. This is a limited power to be applied only in the circumstances of an individual case [58].
There may be circumstances where, on the grounds of safety for a new person in person or for someone else, a new person in prison would be imprisoned contrary to subsection 44(2) of the CMA [60]. However, doing so routinely is not lawful where general separation is not usually complied with [62], as it would be contrary to interpreting the CMA in a way that would “best achieve the purpose of the Act” (section 139 of the Legislation Act 2001 (ACT)) [63].
The CMA’s purpose is to accommodate people in prison appropriately, and in doing so, “respect and protect all human rights in accordance with the [HRA]” [63]. Additionally, section 10 of the CMA explicitly refers to “the differential treatment of remandees in order to recognise that they are presumed innocent of any offence” [63]. His Honour held that section 44(4) of the CRA must be consistent with the “exceptional circumstances” requirement in section 19(2) of the HRA [68].
Accordingly, the Director General’s breach of the HRA was a matter favouring a grant of bail and constituted special circumstances within the meaning of section 9D of the Bail Act [74]-[77].
This judgment demonstrates that public authorities must respect the rights of people in prison, including people on remand. In light of section 44(2) of the CMA and section 19(2) of the HRA, resourcing and practicality cannot justify limiting the rights of people in person.