Justice and Community Safety Directorate

Education and training of staff on human rights principles   

During the reporting period, 41 Justice and Community Safety (JACS) Directorate staff participated in training related to human rights principles. The training included:

  • Human Rights for ACT Public Authorities – three sessions facilitated by the Human Rights Commission (HRC), and
  • Scaling Up Human Rights Protection in the ACT

Staff across the Directorate including legal and policy officers, correctional officers, and staff from the ACT Courts and Tribunal and ACT HRC also participated in related education and training programs including:

  • Disability Awareness (SBS) e-learning
  • LGBTIQ+ Inclusion (SBS) e-learning
  • Visions Virtual Conference
  • JACS Cultural Awareness Training
  • Core Inclusion Program (SBS) e-learning
  • Understanding Sex and Gender diversity
  • Gender Equality Network: explores masculinity and the workplace
  • Women in Leadership
  • Mental Health First Aid
  • Mental Illness and Community Collective Care in the Time of COVID-19 Pandemic
  • Mental Health and the Legal Profession
  • Prolonged experience of high pressure: Mental health advice for JACS Workers, and
  • Citizen Rights & Welfare Protection.

During the reporting period, the Directorate implemented the ACT Government Domestic and Family Violence Training Strategy. The Training Strategy provides for different packages and levels of training that allows staff to complete the level that best aligns with their everyday role at work.

Staff in the Legislation Policy and Programs Division (LPP) provided human rights training for MLAs and advisors at the Legislative Assembly on 26 May 2021 focusing on human rights issues arising in legislation and policies.

Other planned face-to-face training was impacted by the COVID-19 Emergency. In this period, LPP conducted preparatory work on a new Human Rights Training Strategy to guide delivery of internal and cross-directorate human rights training in 2021-22. The Human Rights Toolkit, which provides training and guidance materials, was finalised and published on the JACS website in May 2021.

For the Emergency Services Agency (ESA), the following training and engagement activities were delivered within the reporting period:

  • Mental health first aid (48 participants were trained)
  • ESA Mental Health Month activities (1 adult, 4 children or 2 families) attended a family crafting with mindfulness session, 25 people attended Walking for Wellbeing.
  • 4 people attended R U Ok webinar in the ESA HQ
  • ESA International Women’s Day event (approximately 60 attendees)
  • ESA Men’s Health Week event (approximately 60 attendees), and
  • Reconciliation Week virtual activities provided by JACS, including co-creating an acknowledgement of country informational video in collaboration with JACS.

An overview of the Human Rights Act 2004 was included as part of Induction to all new operational staff of ACT Corrective Services (ACTCS). All ACTCS staff undergo the JACS Directorate mandatory human rights training.

In addition, during the reporting period, 107 ACTCS staff participated in training related to human rights principles. The training included:

  • Human Rights for ACT Public Authorities
  • CSCOFM003 Maintain the health, safety and welfare of offenders
  • CSCOFM004 Protect the safety and welfare of vulnerable offenders
  • CSCOFM026 Protect the safety and welfare of Aboriginal and Torres Strait Islander offenders

Reviews undertaken of internal policies and procedures for compatibility with human rights

The Directorate ensures that human rights are considered during the development of new policies and procedures and in the review of existing policies and procedures.  This has been further strengthened by the new JACS Policy Framework, which was finalised towards the end of the reporting period.

The Human Rights Toolkit was published on the JACS Directorate website in May 2021. The Toolkit provides guidance to assist ACT public agencies to review existing internal policies and procedures for compatibility with human rights.

In the reporting period, Security and Emergency Management Division (SEMD) undertook a review of whole of government CCTV and protective security policies. These reviews will be finalised in 2021-22 with details on human rights considerations to be supplied for the next Annual Report.

In the reporting period, the ESA:

  • Commenced review of the Emergencies (Suspension and Disciplinary Arrangements for Volunteers) Commissioner’s Guidelines 2011, which will be completed in 2021-22.
  • ACT Ambulance Service (ACTAS) identified a human rights issue around the transportation of assistance animals for patients with a disability in late 2019. Through 2020-21, ACTAS developed a new procedure to guide staff in the management of the transportation of assistance animals. The procedure was developed based on a review of the Disability Discrimination Act 1992 (Cwlth) and Human Rights Act 2004 in consultation with the HRC. This procedure has been disseminated to all staff within the ACTAS. A formal review of the compliance of this procedure with human rights consideration will be conducted in the next financial year.
  • ACT Fire and Rescue (ACTF&R) continued the development and review of its pregnancy policy for operational firefighters, including the trial and procurement of maternity garments for its women firefighters.
  • ACTF&R established an Indigenous Advisory Committee, which met in May 2020 and will provide advice to inform the development of the service’s policies and standard operating procedures.

Since 2018, ACTCS has been systematically reviewing its custodial policies and procedures and in 2021, commenced a similar systematic review of community corrections policies and instructions. This approach includes assigning a regular review date to each policy so that no more than a maximum set period elapses before any individual policy will be reviewed.

All ACTCS policies and operating procedures are considered from a human rights perspective as a part of their development and review. During 2020-21, there was an increased focus on guiding staff in considering human rights in decision making processes as described in policies and procedures.

From January 2021, this approach was strengthened when ACTCS implemented a revised policy review and development process that includes consultation with key external stakeholders including the HRC. As a part of this process, the HRC has the opportunity to review and comment on all policies being developed or undergoing a review from that date.

Any guidelines or checklists developed to incorporate consideration of public authority obligations under section 40B of the Human Rights Act in decision making

The Human Rights Toolkit comprises a series of fact sheets that are designed to educate ACT government officers, who have a role in the development or application of legislation, policy or programs, about human rights in the ACT and compliance with obligations under s 40B of the Human Rights Act. The Toolkit includes a policy triggers fact sheet which is designed to assist agencies to identify relevant human rights that might be engaged by their policies to ensure that these rights are properly considered.

The JACS Policy Framework was finalised towards the end of the reporting period and applies to all whole of Directorate policies, procedures and supporting documents that are identified by the hierarchy of Directorate Policy documents. The framework includes a procedural checklist that should be used to guide staff in how to manage the process around the development, review or revocation of these whole of Directorate policies, procedures and supporting documents. The checklist consists of a section which requests staff to ensure that any policies or procedures being created or reviewed are consistent with the Human Rights Act 2004. An update on the implementation of the framework will be provided in the next Annual Report.

ESA uses the WHoG or Directorate guidelines that pertain to recruitment, training and workplace adjustment considerations (in the context of discrimination).

Human rights compatibility is considered when ACTCS policy documents are updated to ensure the protection of rights, and reasonable and proportionate limitations are maintained.

Forms, policies and guidance material used by ACTCS to incorporate consideration of relevant human rights in decision making include:

  • Corrections Management (Policy Framework) Policy 2020
  • Human Rights Education Factsheets
  • JACS Policy Framework (including policy, procedure and checklist)

Any dissemination of information about agency obligations under the Human Rights Act to clients

LPP provides information to Directorates and other ACT public authorities to assist them in complying with the human rights obligations in developing legislation and in decision-making.

The JACS Directorate website contains a range of information for the public regarding the Human Rights Act 2004 and the obligations of public authorities, including the Toolkit: https://www.justice.act.gov.au/safer-communities/human-rights

Human Rights Act considerations included in the complaints handling framework

The JACS Directorate’s Complaints Management Policy is consistent with the Human Rights Act 2004 and incorporates considerations of respect, accessibility and procedural fairness, which reflect the right to equality and the right to a fair trial.

The ACTCS Corrections Management (Detainee Requests and Complaints) Policy 2019 does not specifically incorporate human rights considerations, however the policy is consistent with the Human Rights Act 2004 and incorporates considerations of respect and procedural fairness which reflect the right to equality.

Inclusion of Human Rights Act obligations in contracts and tenders

All staff within the JACS Directorate who are involved in the procurement of goods and services must follow the purchasing principles and guidelines as stated in the Government Procurement Act 2001 and Government Procurement Regulation 2007.

The JACS Directorate uses the ACT Government standardised contract and tender templates which do not explicitly contain any reference to the Human Right Act 2004, however it is a requirement of all respondents to abide by all relevant legislation in connection with any engagement that they might have with the Directorate, including meeting their obligations and compliance with the Act.

Where additional obligations may be required the Directorate seeks advice from the ACT Government Solicitor’s Office and Procurement ACT.

In the reporting period, the Procurement, Contract Management and Assurance Framework was reviewed and finalised. The Framework was developed in consideration of the specific Acts, Regulations and Policies which govern procurement in the Territory and in JACS.

Internal dissemination of information to staff on the legislative scrutiny process

When advising action officers, including officers in the JACS Directorate, with respect to human rights issues in a proposed bill, LPP provides the template for explanatory statements which includes guidance on the human rights analysis required for significant and non-significant bills. LPP also refers action officers to the Human Rights Toolkit for detailed information about relevant rights. LPP also regularly refers to a range of publications on the JACS Directorate and HRC websites as well as the Scrutiny of Bills and Subordinate Legislation Committee’s Guide to writing an explanatory statement.

Liaison with the Human Rights Advisors on human rights principles or the legislative scrutiny process

The Civil Law and Regulatory Law Branch in LPP, JACS exercises the functions of the Human Rights Advisor. The Advisor’s main function is to scrutinise all government bills for compatibility with the Human Rights Act 2004 pursuant to section 37 of the Act.

The Advisor examines all Cabinet submissions for human rights impacts including those seeking policy approval for the development of Bills. The Advisor may make formal comments on a submission where serious human rights issues are identified, to ensure that Cabinet is aware of these concerns.

In the development of Bills, the Advisor works closely with the action officer to identify and address potential human rights issues and to ensure that any limitations are reasonable and proportionate. This may include exploring alternative approaches that would achieve the policy intention with less restrictions on human rights or introducing appropriate safeguards into the bill to reduce unnecessary limitation on human rights. Each action officer that develops a new bill is ultimately responsible for identifying the human rights engaged by the bill and providing adequate justification for any limitations of human rights
in the bill’s explanatory statement.

The Advisor also provides guidance on drafting the explanatory statement for the bill to ensure that the statement sets out the rationale and justification for any limitation of human rights. The explanatory statement is an important mechanism to inform the community of human rights considerations and provides transparency in complying with the Human Rights Act 2004.

The entire process ends when the Advisor provides a memorandum of advice to the Attorney-General regarding the compatibility of the bill with the Human Rights Act 2004. Under section 37 of the Human Rights Act 2004 the Attorney-General is responsible for providing a human rights compatibility statement. The statement is presented to the Legislative Assembly with each government bill that is introduced.

In the 2020-21 financial year, the Advisor provided whole-of-government human rights assistance and advice in relation to 31 government bills. All government bills introduced into the Legislative Assembly during the same financial year were ultimately assessed to be compatible with the Human Rights Act 2004, and a compatibility statement was issued for each bill.

In the 2020-21 financial year, 11 of the government bills introduced into the Assembly were led or co-led by the JACS Directorate. The Advisor worked closely with action officers to address human rights issues in these bills.

Reviews or preparations for reviews of existing legislation for compatibility with the Human Rights Act

In this period LPP progressed reforms on the change of names/registered sex processes in the Births, Deaths and Marriages Registration Act 1997 to promote the human rights of transgender, intersex or gender diverse young people, and of adopted people.

In the reporting period, LPP also facilitated an independent statutory review of the Protection of Rights (Services) Legislation Amendment Act 2016 and the Public Trustee and Guardian Act 1985. The independent review evaluated the effectiveness of the 2016 amendments that reformed the structure and operation of protection of rights services. The Review report made 31 recommendations all of which were agreed or agreed in principle by Government.

Litigation

In 2020-21, one proceeding was finalised and the Court found a breach of section 21(1) of the Human Rights Act 2004.  As a result, ACT Corrective Services is reviewing the Detainee Disciplinary Policy and Procedure and has put interim measures in place to address the finding. Suburban Land Agency

Education and training of staff on human rights principles   

During the reporting period, the Agency undertook and supported a range of actions and training opportunities to support Human Rights awareness, including:

  • Supporting nationally significant events including NAIDOC Week, National Reconciliation Week, and International Day Against Homophobia, Biphobia, Intersexism and Transphobia (IDAHOBIT)
  • Facilitating and supporting staff to attend ‘Dhawura Language’ training workshops with attendees delivering the Acknowledgement of Country at key Agency meetings;
  • Providing access to training programs including the Respect Equity and Diversity Framework, LGBTIQ+ Awareness, Disability Confidence, Mental Health Awareness and Aboriginal and Torres Strait Islander Cultural Awareness
  • Supporting a workshop ‘Dealing with Persistent Complainants’ delivered by the Australian Government Solicitor.

Reviews undertaken of internal policies and procedures for compatibility with human rights

In 2020-21 no specific reviews were undertaken into human rights issues; however, the Agency reviews its policies and procedures that are consistent with the Human Rights Act 2004 as part of its continuous improvement practices. The Governance team maintains a Policies and Procedures Register for each financial year including last reviewed and future review dates. A recent inclusion on the Policies and Procedures Register is the Agency’s Diversity Action Plan. The Action Plan is aligned to the Environment, Planning and Sustainable Development Directorate (EPSDD) Diversity and Inclusion Strategy.

The Agency has a number of Service Level Agreements (SLAs) in place with EPSDD, one of which is for People and Capability. The SLA for People and Capability involves human rights matters of misconduct, grievances complaints, and employee relations. 

Any guidelines or checklists developed to incorporate consideration of public authority obligations under s 40B of the Human Rights Act in decision making

Through the SLAs with EPSDD, the Legal Services and Integrity team provides guidance on operation of legislation and policy that affects the Agency. Further advice is provided regarding the Agency’s obligations stemming from the City Renewal and Suburban Land Agency Act 2017 and other legislation, statutory interpretation that is not controversial, complicated or is covered by previous legal advice, and the development of legislative instruments.

Any dissemination of information about agency obligations under the Human Rights Act to clients

None provided for the reporting period.

Human Rights Act considerations included in the complaints handling framework

The Agency incorporates the principles of natural justice and other Human Rights considerations into its Human Resources, Complaints and Integrity policies and processes. These are supported by EPSDD policies such as the Information Privacy Policy.

As the Agency matures and further Agency specific policies are developed, we continue to look for opportunities for improvements and inclusion of Human Rights considerations.

Inclusion of Human Rights Act obligations in contracts and tenders

The Agency uses WhoG contract and tender documentation and process that incorporates human rights considerations.

In this reporting period a comprehensive review was conducted relating to procurement of Aboriginal and Torres Strait Islander (ATSI) suppliers.

Internal dissemination of information to staff on the legislative scrutiny process

The EPSDD Legal Services and Integrity team directs Agency staff to relevant WhoG information, legislation, publications and resources.

Liaison with the Human Rights Advisors on human rights principles or the legislative scrutiny process

Under the SLAs with EPSDD, EPSDD is responsible for processes in relation to legislative development and scrutiny to ensure human resource and other legal policy matters are considered in the development of legislation projects. This includes the proper consideration and documentation of human rights compliance matters. The Agency actively supported and engaged with the EPSDD during these processes during the reporting period.

Reviews or preparations for reviews of existing legislation for compatibility with the Human Rights Act

The Agency did not undertake a review of the Human Rights Act 2004 in this reporting period. EPSDD will lead future reviews and consider compatibility of legislation with the Human Rights Act 2004.

Litigation

There were no cases or issues of human rights litigation involving the Agency in the reporting period.