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Correctional Services Act 2006

Commencement: 7 August 2006

REPUBLIC OF VANUATU

CORRECTIONAL SERVICES ACT 2006
NO. 10 OF 2006

Arrangement of Sections

PART 1 PRELIMINARY
1 Purpose and objects of the Act
2 Interpretation

PART 2 ADMINISTRATIVE RESPONSIBILITY
3 Director of the Department of Correctional Services
4 Functions of the Director
5 Powers of the Director
6 Delegation of the functions or powers of the Director

PART 3 CORRECTIONAL CENTRES
7 Establishment of correctional centres
8 Responsibility for correctional centres
9 Correctional centre manager
10 Functions of correctional centre managers
11 Powers of correctional centre managers
12 Delegation of the functions or powers of the correctional centre managers
13 Appointment of correctional officers
14 Functions of correctional officers
15 Correctional officers to comply with directions or instructions
16 Temporary correctional officers
17 Inspection of correctional centres
18 Official visitors

PART 4 ADMISSION AND TREATMENT OF DETAINEES

Division 1 – Admission of detainees
19 Procedure for admitting detainees
20 Legal custody
21 Separation of detainees

Division 2 – Rights and obligations of detainees
22 Welfare of detainees
23 Correctional centre work
24 Director to make rules
25 Complaints
26 Offences against discipline

Division 3 – Discipline of offences by detainees
27 Establishment of the Disciplinary Committee
28 Power to hear complaints of offences against discipline
29 Power to examine witnesses
30 Charge of disciplinary offence
31 Procedure for disciplinary hearings
32 Punishments
33 Right of appeal
34 Referral to police
35 Record of disciplinary hearing

Division 4 – Protection of detainees and breach of security
36 Restraint
37 Use of force on serious breach of security
38 Measures for the protection of detainees

Division 5 – Transfer and discharge of detainees
39 Removal and transfer of detainees
40 Discharge of detainees
41 Release from correctional centre

PART 5 PROBATION SERVICES
42 Responsibility for probation services
43 Probation managers
44 Functions of probation managers
45 Powers of probation managers
46 Probation officers
47 Functions of probation officers
48 Delegation to community justice supervisors
49 Community justice supervisors

PART 6 PAROLE AND THE COMMUNITY PAROLE BOARD
50 Parole
51 Eligibility for Parole
52 Conditions of Parole
53 Special conditions of parole
54 Offence related to breach of parole
55 Establishment of the Community Parole Board
56 Appointment of alternate members
57 Meetings and Procedure of the Board
58 Functions of the Board
59 Release from correctional centre on parole
60 Variation or cancellation of parole
61 Recall of offenders on Parole
62 Interim recall order
63 Recall Order

PART 7 MISCELLANEOUS
64 Application of the Public Service Act No. 11 of 1998
65 Protection from liability
66 General Offences
67 Punishment for General Offences
68 Regulations
69 Commencement

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REPUBLIC OF VANUATU

CORRECTIONAL SERVICES ACT
NO. 10 OF 2006

Assent: 17/07/2006
Commencement: 7/08/2006

An Act to provide for the administration of correctional services and the establishment and operation of correctional centres.

Be it enacted by the President and Parliament as follows-

PART 1 PRELIMINARY

1 Purpose and objects of the Act

(1) The purpose of this Act is to:

(a) ensure that sentences are administered in a fair and effective manner; and

(b) ensure that correctional facilities are based on internationally accepted standards for the fair and humane treatment of offenders consistent with the cultural, traditional and religious values of Vanuatu; and

(d) providing useful and timely information to Courts and Community Parole Boards to assist them in determining decisions relating to the rehabilitation and reintegration of offenders; and

(e) provide for the establishment, maintenance and operation of correctional centres; and

(f) provide for the facilities for the appropriate detention of detainees in accordance with human rights conventions; and

(g) provide for the maintaining of links between detainees and the community through rehabilitative and reintegrative community programmes.

(2) The principal objects of this Act are:

(a) the maintenance of public safety; and

(b) the consideration of victims’ interests; and

(c) to ensure offenders undertaking sentences of supervision or in correctional centres have access to rehabilitative and reintegration programmes; and

(d) to ensure the fair treatment of offenders undergoing sentences of supervision, community work or detained in correctional centres; and

(e) for offenders as far as is reasonable and practicable in the circumstances and within the resources available, to be given access to activities that may contribute to their rehabilitation and reintegration into the community.

2 Interpretation

In this Act, unless the contrary intention appears:

correctional centre means a correctional centre established under Part 3;

correctional centre manager means the person appointed as the manager of a correctional centre;

Department means the Department of Correctional Services;

detainee means any person for the time being under the legal custody of the Director or Commissioner of Police under this Act;

Director means the Director of the Department of Correctional Services;

imprisonment means a term of imprisonment imposed on a person by a Court and such person will upon sentence, become a detainee under this Act;

Minister means the Minister responsible for correctional centres;

offender includes a person who is under control or supervision, and includes a person released from a correctional centre on parole;

staff means all persons employed in the Department of Correctional Services as correctional centre managers, correctional officers or to other positions within a correctional centre.

PART 2 ADMINISTRATIVE RESPONSIBILITY

3 Director of the Department of Correctional Services

The Public Service Commission is to appoint the Director of the Department of Correctional Services who shall be the head of the Department.

4 Functions of the Director

(1) The Director has the following functions:

(a) to ensure that the correctional services system operates in accordance with the purpose and objects set out in section 1; and

(b) to prepare the budget for the Department and for each correctional centre and managing all funds allocated under the budget; and

(c) to propose policies on the management of correctional centres and the probation service and to ensure that proposed policies are implemented; and

(d) to develop national programmes for the training of correctional officers and probation officers to ensure the highest degree of professionalism amongst staff; and

(e) to commission or undertake research on the good administration of correctional centres, parole and rehabilitation and reintegration models; and

(f) to commission or undertake research on the good administration, programmes, and development of probation services; and

(g) to establish and implement such programmes of rehabilitation, work in correctional centre, education and vocational training for detainees as are necessary for their eventual reintegration into society on release, subject to the availability of funds for that purpose; and

(h) to prepare a correctional centre manual in relevant languages that clearly describe the provisions of the Acts, regulations, rules and policies relating to the administration and operation of correctional centres and their practical implementation; and

(i) to establish an equitable mechanism for the distribution of income that may be generated from such work programmes that may be established taking into consideration international labour standards; and

(j) to establish a procedure for the classification of detainees and assessment of detainees; and

(k) to ensure the safe custody and welfare of detainees; and

(l) to ensure the welfare of offenders subject to community based sentences or conditions imposed by the Community Parole Board during the periods when they are in the presence of any staff member of the Department; and

(m) to ensure that offenders carry out their sentences; and

(n) to visit and inspect any correctional centre or probation office or community work activity and at his or her discretion interview any person undergoing a correctional centre or community based sentence; and

(o) to issue instructions, guidelines or policies in relation to any or all of the activities undertaken by the Department and its staff; and

(p) to comply with the requirements of this or any other Act and regulations; and

(q) to ensure compliance of all or any of the obligations imposed on the Department and staff members under this or any other Act; and

(r) to comply with a general direction given by the Minister; and

(s) to undertake such other functions as are conferred on him or her under this Act or any other Act.

(2) The Director shall submit no later than 3 months from the end of each financial year a report to the Minister on the management and state of the correctional centres.

(3) After receiving the report referred to in subsection (2), the Minister must present that report at the next sitting of Parliament.

5 Powers of the Director

The Director has the following powers:

(a) to make in consultation with correctional centre managers, rules for the internal administration of correctional centres; and

(b) to inquire into the treatment and conduct of persons undergoing a community based sentence; and

(c) to inquire into all abuses or alleged abuses within each correctional centre or probation office or community work activity or in connection with it; and

(d) to exercise all or any of the powers of a correctional centre manager, probation manager, correctional officer or probation officer; and

(e) to exercise such other powers as are conferred on him or her under this Act or any other Act.

6 Delegation of the functions or powers of the Director

(1) The Director may from time to time in writing either generally or specifically, delegate (unless the contrary intention applies) to any staff member as he or she thinks fit all or any of the functions or powers exercisable by the Director under this Act or any other Act.

(2) By delegating a function or power, the Director does not remove his or her own personal responsibility for such function or power which, in addition to the delegated person, remains with the Director at all times.

(3) The Director may exercise a function or power notwithstanding that he or she has delegated its exercise under this section.

PART 3 CORRECTIONAL CENTRES

7 Establishment of correctional centres

(1) The Minister may by notice published in the Gazette declare any land or buildings or part of any land or buildings to be a correctional centre or temporary correctional centre and in the same way declare any land or buildings or part of land or buildings to be excluded from any correctional centre or temporary correctional centre.

(2) The prisons in Port Vila and Luganville will, on the commencement of this Act, be deemed to be correctional centres as if established under subsection (1).

(3) A person sentenced to a term of imprisonment of 6 months or less may, with the approval of the Director, be detained in a police cell under the legal custody of the Commissioner of Police if there is no correctional centre on the island where the person was sentenced to imprisonment, provided that the obligations under this Act relating to the detention of detainees must be complied with.

8 Responsibility for correctional centres

The Director shall be responsible for providing all the necessary services for the administration and operation of correctional centres and shall keep all statistics and information relevant for the planning, administration and operation of correctional centres.

9 Correctional centre manager

The Public Service Commission is to appoint a correctional centre manager for each correctional centre whose principal function is to provide for the order, security and discipline in his or her correctional centre.

10 Functions of correctional centre managers

A correctional centre manager has the following functions:

(a) to ensure that the correctional services system operates in accordance with the purpose and objects set out in section 1; and

(b) the responsibility for the control, supervision and general administration of the correctional centre to which he or she is appointed as manager; and

(c) the responsibility for the safety and security of the detainees and any person lawfully in the correctional centre and of the correctional centre itself; and

(d) the responsibility for ensuring order and discipline in the correctional centre; and

(e) making recommendations for the adoption of rules for the internal management of the correctional centre; and

(f) to ensure that the programmes for rehabilitation, work in correctional centre, education and vocational training for which funds are provided are implemented bearing in mind the special needs of each detainee; and

(g) to ensure compliance with any delegated functions or powers; and

(h) to have such other functions in relation to this Act as the Director may determine.

11 Powers of correctional centre managers

A correctional centre manager has the powers conferred by this Act, and such other powers as may be necessary or convenient for the performance of the manager’s functions under this Act.

12 Delegation of the functions or powers of the correctional centre managers

(1) A correctional centre manager may generally or specifically delegate to any correctional officer by instrument in writing signed by him or her, all or any of the functions or powers conferred on him or her by this or any other Act and regulations.

(2) A delegation under this section may be:

(a) made subject to such condition, qualifications or exceptions as are set out in the instrument of delegation; and

(b) revoked or varied by written instrument at any time by the manager.

(3) The correctional centre manager may exercise a function or power notwithstanding whether he or she has delegated its exercise under this section.

13 Appointment of correctional officers

The Public Service Commission is to appoint such correctional officers to assist a correctional centre manager to provide for the order, security and discipline in his or her correctional centre.

14 Functions of correctional officers

A correctional officer has the following functions:

(a) to ensure the safe custody and welfare of a detainee under his or her control; and

(b) to comply with and implement any rules made by the Director or correctional centre manager; and

15 Correctional officers to comply with directions or instructions

A correctional officer must comply with all lawful directions, instructions, guidelines or policies issued by the Director or the correctional centre manager.

16 Temporary correctional officers

(1) If circumstances arise, and it is in the public interest to do so, the Minister may, by written instrument, appoint members of the Police Force to act as temporary correctional officers and such appointment is to have effect only for the period that is necessary to satisfy the circumstances and public interest.

(2) A temporary appointment made under subsection (1) may be revoked by the Minister by written notice.

(3) The Director must:

(a) keep written instruments, recording the temporary appointments of correctional officers under subsection (1); and

(b) maintain a record of these appointments in a register at the Department of Correctional Services.

(4) A temporary correctional officer will be subject to the authority of the Director and the direction of the relevant correctional centre manager.

17 Inspection of correctional centres

The Director or any other person appointed in writing by the Director may inspect any correctional centre.

18 Official visitors

(1) The Minister, every Judge of the Supreme Court or every Magistrate of the Magistrates Court and the holders of such other offices as the Minister may designate by notice published in the Gazette, shall be Official Visitors to all correctional centres.

(2) Every Official Visitor to a correctional centre under this section, may at any time enter into and examine the conditions of any correctional centre and the detainees, and may register any observations related to the conditions of the correctional centre or abuses therein in a visitor’s book kept by the correctional centre manager. It shall be the duty of the correctional centre manager to draw the attention of the Director to any entries made in the book.

(3) The Public Prosecutor, Public Solicitor, any legal counsel, or any authorised official appointed by the Minister shall have the right to enter into any correctional centre for the purposes of performing any function granted to him or her under this or any other Act.

(4) All staff members shall cooperate with and give full assistance to any person visiting the correctional centre in an official capacity under this Act.

PART 4 ADMISSION AND TREATMENT OF DETAINEES

Division 1 – Admission of detainees

19 Procedure for admitting detainees

(1) A person is not to be admitted into a correctional centre without a valid committal warrant issued by a Magistrate of the Magistrates Court or a Judge of the Supreme Court.

(2) Notwithstanding subsection (1):

(a) a child below the age of six months may be admitted with the mother who is lawfully detained; and

(b) under special circumstances and where the correctional centre manager deems it justifiable, a child between the ages of six months and two years may be admitted with the mother who is lawfully detained.

(3) In making a decision under this subsection, the correctional centre manager must take into consideration the best interests of the child.

(4) If a child is admitted into a correctional centre with the mother, the correctional centre manager must ensure that the basic needs of the child are adequately provided for.

(5) The correctional centre manager must immediately upon admission of a detainee:

(a) ensure that the following information is recorded in a bound register or an electronic data processor:

(i) information concerning the identity of the detainee; and

(ii) the reasons for his or her commitment and the committal warrant; and

(iii) the day and hour of his or her admission.

(b) make an initial assessment of the detainee for the purpose of determining his or her classification; and

(i) the treatment of detainees of his or her category; and

(ii) all the rights and the privileges of the detainee; and

(iii) the disciplinary requirements.

If the detainee is illiterate, the information shall be conveyed to him or her orally.

(d) with the consent of the detainee, notify members of his or her immediate family or a friend of the detainee that the detainee has been admitted into the correctional centre and the date of admission; and

(e) arrange for the detainee to have a physical and mental state examination by a qualified medical practitioner or a registered nurse.

(6) A detainee awaiting trial shall be allowed to inform immediately his or her family or friend by himself or herself and shall be provided with the facilities to do so.

20 Legal custody

(1) The Director has legal custody of every detainee and a correctional centre manager shall be responsible for the day to day care of every detainee in his or her centre.

(2) Legal custody of a detainee under subsection (1):

(a) commences as soon as the detainee is received within the correctional centre or into the custody of a correctional officer; and

(b) is to continue while the detainee is confined in the correctional centre.

(3) If a detainee is for any reason outside the correctional centre in the custody or under the control or supervision of any other authorised person under this Act, that authorised person shall have the powers and obligations of a correctional officer in dealing with the detainee.

(4) If a correctional officer or an authorised person having custody or control or supervision of any detainee outside the correctional centre is:

(a) ill or incapacitated; or

(b) for any other reason, that custody or control or supervision ceases;

the detainee must return to the correctional centre.

(5) If the detainee fails to return to the correctional centre, he or she is deemed to have escaped from lawful custody, and is subject to criminal charge.

21 Separation of detainees

(1) The correctional centre manager must, where practicable, ensure that detainees of the following categories are separated:

(a) male from female detainees, who are to be confined in separate areas; and

(b) detainees admitted to the correctional centre with a valid committal warrant from detainees awaiting trial; and

(d) such other category of detainees as the Director may specify in writing.

(2) The correctional centre manager must, where practicable, ensure that the special needs of the following categories of detainees are provided for:

(a) minors; and

(b) women, in particular pregnant or nursing mothers; and

(d) persons with disability.

(3) For the purposes of this section:

minor means a person under 16 years of age;

adult means a person of 16 years of age and over.

Division 2 – Rights and obligations of detainees

22 Welfare of detainees

(1) The correctional centre manager must ensure that all detainees are kept in a correctional centre that is safe and secure with humane living conditions.

(2) A detainee in a correctional centre has the following rights:

(a) to have a bed and clean beddings; and

(b) to have access to washing facilities so that every detainee may have a bath or shower as necessary for hygiene; and

(d) to have natural or artificial light; and

(e) to have access to sanitary facilities and products; and

(f) to shaving facilities; and

(g) to have clean and acceptable clothing; and

(h) to have a minimum of two hours of outdoor physical exercise in fresh air and sunlight every day; and

(i) to have access to private visitors; and

(j) to have access to a legal counsel and to communicate with him or her freely, without censorship and in confidence; and

(k) to have access to medical care and treatment, and regular health inspections; and

(l) to receive and send correspondences and telephone communications.

(3) The rights provided in subsection (2) may be limited if:

(a) there is an emergency in the correctional centre; or

(b) the security of the correctional centre is threatened; or

(d) for any other reason provided by this Act or any other Act.

(4) A detainee must not be denied a right granted under this section as punishment for a disciplinary offence.

(5) The Correctional centre manager must, where practicable, ensure that adequate and appropriate provision is made for the various religious and spiritual needs of the detainees.

23 Correctional centre work

(1) A detainee is required to perform such work as the correctional centre manager may direct.

(2) A detainee awaiting trial must not be required to perform any work, but may at his or her own request, and subject to the directions of the correctional centre manager, perform such work as the correctional centre manager may arrange.

(3) The correctional centre manager must, in directing or arranging for any particular work to be performed by a detainee, have regard to the age and the physical and mental health of the detainee, and any skills or work experience of the detainee.

24 Director to make rules

The Director may after consultation with the correctional centre manager make rules for the internal administration of correctional centres.

25 Complaints

(1) Without prejudice to any other right, every detainee may at any time make a complaint or request to the correctional centre manager or any authorised person.

(2) Notwithstanding subsection (1), if the complaint is against the correctional centre manager, it shall be made to the Director.

(3) The person receiving the complaint or request must give the detainee every opportunity necessary to fully state his or her complaint or request.

(4) Unless the complaint or request is evidently frivolous or without any valid grounds, it shall be dealt with and responded to without undue delay.

(5) A complaint that alleges an abuse against a detainee or a violation of his or her rights shall, as soon as practicable, be submitted to the Director for investigation and the Director may submit the complaint for investigation to the Commissioner of Police.

(6) If a complaint of abuse is made against a correctional officer, the correctional centre manager or as appropriate, the Director must ensure that the officer is restrained from having any contact with the detainee pending the outcome of the investigation.

26 Offences against discipline

(1) A detainee who:

(a) acts in contravention to any rules made under section 24; or

(b) disobeys any lawful order of any correctional officer; or

(d) acts in an abusive or indecent manner, whether by language or conduct; or

(e) maliciously threatens another person; or

(f) without authority, communicates with any person, not being a detainee or a correctional officer or any other person lawfully admitted in the correctional centre; or

(g) without permission, leaves his or her cell, place of work or appointed place; or

(h) traffics in unauthorised articles or substances; or

(i) engages in gambling; or

(j) in relation to medical tests conducted interferes with, or substitutes a test or sample,

commits a minor offence against discipline and is liable to be punished in accordance with the provisions of subsection 32(1).

(2) A detainee who:

(a) wilfully disfigures, damages or destroys any part of the correctional centre, or any property that is not his or her own; or

(b) assaults any other person, including another detainee; or

(d) has in his or her possession an article or substance not issued or authorised by a correctional officer, prescribed by a registered nurse, medical practitioner or dentist, or permitted under this Act; or

(e) takes or uses alcohol, a drug of addiction or drug of dependence or an unauthorised substance or article that has not been lawfully issued to the detainee or takes or uses alcohol or a drug of addiction or drug of dependence lawfully issued in a manner that was not prescribed or authorised; or

(f) is in possession of

(i) a weapon; or

(ii) an object that is likely to be used as a weapon

to cause harm or injury to others or himself or herself; or

(g) takes without permission, the property of any other person; or

(h) riots or incites detainees to riot; or

(i) commits an act or omission that is contrary to the good order, management or security of the correctional centre or the security of detainees,

commits a serious offence against discipline and is liable to be punished in accordance with the provisions of section 32(2).

Division 3 – Discipline of offences by detainees

27 Establishment of the Disciplinary Committee

(1) The Disciplinary Committee is established.

(2) The Disciplinary Committee consists of 3 members.

(3) The members are:

(a) the correctional centre manager; and

(b) 2 official visitors.

28 Power to hear complaints of offences against discipline

(1) The Disciplinary Committee has the power to hear any complaint relating to any offence against discipline under subsection 26(2).

(2) Notwithstanding subsection (1), a correctional centre manager has the power to hear any complaint relating to any offence against discipline under paragraph 26(1).

29 Power to examine witnesses

A correctional centre manager or the Disciplinary Committee may, on hearing a complaint pursuant to section 30, examine any person concerning the alleged offence on oath or otherwise.

30 Charge of disciplinary offence

A charge of a disciplinary offence alleged to have been committed by a detainee must be made by any correctional officer and be brought by the same officer to the attention of:

(a) the correctional centre manager, if the alleged offence was committed under subsection 26(1); or

(b) the Disciplinary Committee or as appropriate refer it to the police under section 34, if the alleged offence was committed under subsection 26(2).

31 Procedure for disciplinary hearings

(1) A detainee charged with an offence against discipline shall be given a written notice of the charge as soon as practicable setting out the following details:

(a) the alleged offence;

(b) the date of the offence;

(d) the provision of the Act that is alleged to have been breached.

(2) A hearing and an examination mentioned in sections 28 and 29 respectively shall be in the presence of the detainee charged with the offence who, will be entitled to be heard and to call or put questions to any witnesses and to make submissions.

(3) The correctional centre manager or a Disciplinary Committee must not find the detainee charged with an offence guilty, unless he or she is satisfied based on the evidence presented at the hearing, that the detainee committed the disciplinary offence in question.

(4) A detainee charged with an offence against discipline must be provided with all reasonable means to prepare his or her defence, including translation or interpretation services, as may be required.

(5) All matters before the Disciplinary Committee shall be decided by consensus.

32 Punishments

(1) A detainee who is found guilty of a disciplinary offence under subsection 26(1) shall be liable to one or more of the following punishments:

(a) a warning or reprimand; or

(b) a loss of privileges; or

(2) A detainee who is found guilty of a disciplinary offence under subsection 26(2) shall be liable to one or more of the following punishments:

(a) a warning or reprimand; or

(b) a loss of privileges; or

(d) confinement in the detainees sleeping quarters for a maximum of seven days; or

(e) restitution; or

(f) confiscation of property associated with the offence and disposal of that property as the correctional centre manager thinks appropriate;

provided that a minor must not be subjected to punishment under paragraphs (e) and (f) without the prior approval of the Director.

33 Right of appeal

(1) A detainee who is found guilty of a disciplinary offence under this Act and is dissatisfied with the findings or the punishment may, as soon as practicable, lodge an appeal with the correctional centre manager or the Disciplinary Committee against the findings or the punishment.

(2) The correctional centre manager or the Disciplinary Committee must ensure that a detainee who has indicated a desire to appeal against a finding or punishment is given appropriate assistance to make the appeal.

(3) The punishment imposed against the detainee must be stayed until the appeal is disposed of.

(4) For the purposes of hearing appeals under this section, the chief magistrate of the Magistrate’s Court in the district in which a correctional centre is situated shall designate a magistrate to attend the correctional centre no less than once every two weeks to hear and determine appeals by detainees.

(5) A magistrate designated to hear appeals under section (4) shall serve for a period no longer than two years after which he or she shall be replaced by another magistrate to be designated by the chief magistrate of the relevant Magistrate’s Court.

(6) A magistrate hearing an appeal against the findings or punishment imposed by the correctional centre manager or the Disciplinary Committee under this section may either:

(a) confirm or overturn the finding and as appropriate quash, or confirm the punishment imposed; or

(b) substitute it with an appropriate punishment.

34 Referral to police

If at any time during a hearing under paragraph 30(b), the Disciplinary Committee is of the opinion that, in the circumstances, the detainee has committed an offence of sufficient gravity, the Disciplinary Committee may decline to proceed with the hearing and instead refer the matter to the police.

35 Record of disciplinary hearing

(1) A record of the disciplinary hearing shall be entered into a charge register which will include:

(a) a statement of the nature of the offence;

(b) the date of the offence;

(2) All charge entries must be signed with the relevant date on which the entry was made on by the officer making the entry into the charge register.

(3) The correctional centre manager must send to the Director at the end of each week, particulars of every entry made in the charge register.

Division 4 – Protection of detainees and breach of security

36 Restraint

(1) Without prejudice to any power otherwise conferred, a correctional centre manager may authorise and direct the restraint of a detainee where, in the opinion of the correctional centre manager, the restraint is necessary:

(a) to prevent the detainee from injuring himself or herself or any other person and to seek medical advice; or

(b) to prevent the escape of the detainee during his or her movement to and from the correctional centre.

(2) If a restraint is used in relation to a detainee for a continuing period of more than 4 hours under paragraph (1)(a), the use of the restraint and the circumstances must be reported to the Director. The Director must refer the matter for review by a medical practitioner or a registered nurse.

37 Use of force on serious breach of security

(1) If the Director is of the opinion that a serious breach of the order or security of any correctional centre has occurred or is imminent and no other reasonable means of control are available, the Director may order the use of such force against any detainee as is necessary and proportional to the need, to restore order and security in the correctional centre.

(2) Before force is used under this section, steps must be taken, where it is practicable under the circumstances so to do, to issue the orders necessary to restore or ensure order and security within the correctional centre and to give warning of the consequences of failure to comply with those orders.

38 Measures for the protection of detainees

(1) A correctional centre manager may authorise the use of separate confinement in an adequately illuminated and ventilated cell in order to protect an individual from harming himself or herself or other detainees.

(2) The use of separate confinement for protection shall be used strictly for the period in which the detainee is a risk to himself or herself or to other detainees and must not exceed in any case, 7 days.

(3) A detainee subjected to separate confinement is entitled to be regularly examined by a medical practitioner or a registered nurse who may make a recommendation on medical grounds that the correctional centre manager remove the detainee from such confinement.

Division 5 – Transfer and discharge of detainees

39 Removal and transfer of detainees

(1) Subject to the provisions of any other Act, any detainee may be transferred, on the direction of the Director, from the correctional centre in which he or she is lawfully detained to another, provided that the transfer is:

(a) in the best interest of the detainee; or

(b) for the order and security of the correctional centre; or

(2) A detainee may be removed from the correctional centre and taken to another place for judicial purposes.

(3) A detainee may not be removed from a correctional centre under subsection (2) unless there is a duly signed order by a Registrar of a Court, a Judge, an investigator or the Public Prosecutor directing the correctional centre manager to take the detainee to the relevant place for judicial purposes.

(4) If it appears that a detainee requires medical, surgical or dental treatment or such treatment is required on the advice of a medical practitioner or a registered nurse, the detainee may be removed by or under the direction of the correctional centre manager to a hospital or other suitable place for the purpose of examination or treatment.

(5) Whenever a detainee is transferred from one correctional centre to another, the correctional centre manager must, with the consent of the detainee and as soon as practicable, inform the family of the detainee or a friend of the detainee and record the matter in a bound transfer register or an electronic data processor.

(6) If a detainee is removed from a correctional centre for any of the purposes under this section, the detainee is deemed to continue to be under the legal custody of the Director while he or she is absent from the correctional centre.

(7) The reasons for the removal of the detainee, the authority and purpose for the removal and as appropriate, the duration of the removal is to be recorded in a register kept for that purpose.

(8) Whenever a detainee is taken out of a correctional centre, he or she is to be, as far as practicable, protected from public view and be protected from any insult or disrespect.

40 Discharge of detainees

(1) The Director is responsible for the discharge of a detainee, who is to be discharged on the date on which he or she is due for release.

(2) At the time of discharge, the correctional centre manager must ensure that the detainee is given all his or her belongings that were taken from the detainee at the time of admission or any other time, including all income that may be due to the detainee arising from earnings from any work in a correctional centre programme.

41 Release from correctional centre

The last date a detainee can be released is on that person’s sentence expiry date.

PART 5 PROBATION SERVICES

42 Responsibility for probation services

The Director is responsible for providing probation services in accordance with the provisions of this or any other Act.

43 Probation managers

The Public Service Commission is to appoint such probation managers as are necessary to assist the Director in the management of Probation Services.

44 Functions of probation managers

A probation manager has the following functions:

(a) to oversee the administration of all community based sentences; and

(b) to manage and give directions, trainings and to oversee the activities of probation officers and community justice supervisors; and

(c) such other functions as are conferred on him or her under this Act or any other Act.

45 Powers of probation managers

A probation manager has the following powers:

(a) to delegate in writing, with the approval of the Director, to a probation officer all or any of his or her powers and functions without affecting his or her own responsibility which remains; and

(b) to exercise all the functions and powers of a probation officer or a community justice supervisor as required.

46 Probation officers

The Public Service Commission is to appoint as many probation officers as are necessary for the effective and efficient administration of Probation Services in Vanuatu.

47 Functions of probation officers

A probation officer has the following functions:

(a) to supervise persons placed under his or her supervision; and

(b) to ensure that any condition placed on a person under a sentence of supervision or conditional release on parole are complied with; and

(c) to administer sentences of supervision and community work referred to the probation officer and to ensure that such sentences are carried out; and

(d) to arrange and supervise the activities of community justice supervisors; and

(e) to coordinate and arrange community involvement in the administration of any community based sentence or any particular release by the Community Parole Board as required and in accordance with any instructions issued by a probation manager; and

(f) to arrange, provide and monitor rehabilitative and reintegrative programmes or related services for offenders as required or when directed to do so by a probation manager; and

(g) to provide reports and information that a Court, the Community Parole Board, the Director, the correctional centre manager or the Public Prosecutor is entitled to receive; and

(h) to comply with the direction of the Director or a probation manager, and to perform any other function or duty conferred on him or her under this Act or any other Act.

48 Delegation to community justice supervisors

(1) A probation officer may delegate to a community justice supervisor, on the written approval of the Director or a probation manager, his or her powers to control, direct or supervise offenders subject to a sentence of supervision or community work.

(2) A delegation referred to in subsection (1) must:

(a) be in writing; and

(b) not convey to the community justice supervisor the power to arrest or any enforcement or penal power or authority conferred on a probation officer under this or any other Act.

49 Community justice supervisors

(1) A community justice supervisor is to be appointed by the Director.

(2) A community justice supervisor must be a person of high standing in the community.

(3) A community justice supervisor must enter into a written agreement with a probation officer.

(4) The agreement will last for only such time as the offender is subject to the supervision or community work order or until the agreement with the community justice supervisor is withdrawn by the Director.

(5) A community justice supervisor may supervise more than 1 offender at any one time.

(6) A community justice supervisor will not by reason of holding office as a community justice supervisor be a member of the public service and the Public Service Act No. 11 of 1998 is not to apply to him or her.

(7) A community justice supervisor must comply with the direction of a probation manager or a probation officer in the performance of any function or duty conferred to him or her under this Act or any other Act.

PART 6 PAROLE AND THE COMMUNITY PAROLE BOARD

50 Parole

For the purposes of this Part:

parole is the period of supervision that an offender is subject to, following release from a correctional centre.

Board means the Community Parole Board.

51 Eligibility for Parole

(1) Subject to subsection (2) and subsection (3), a detainee is eligible for consideration by a community parole board for release on parole upon the expiry of a half of his or her sentence.

(2) An offender sentenced to a term of imprisonment of 12 months or less, will be automatically released on parole after serving a half of his or her sentence.

(3) If an offender is sentenced to life imprisonment the offender will be eligible for consideration by a community parole board for release on parole after serving 8 years of his or her sentence.

(4) The period of parole for an offender shall be the longer of a period of 12 months or until the end date of his or her sentence expiry date.

(5) Notwithstanding subsections (1) to (4), the Director may apply to the Board to have an offender’s release on parole delayed if the offender has committed, within one month of the offender becoming eligible for parole under this section, a disciplinary offence under section 26.

(6) If the Board grants an application under subsection (5) the Board may delay the release of parole to the offender for such period and on such conditions as it thinks fit but not beyond the offender’s sentence expiry date.

52 Conditions of Parole

(1) The following standard conditions will apply to an offender released on parole:

(a) the offender must report in person to a probation officer as soon as practicable and not later than 72 hours after his or her release on parole; and

(b) the offender must report to a probation officer as and when required to do so by a probation officer and must notify the probation officer of his or her residential location; and

(c) the offender must not move to a new residential location without the prior written consent of a probation officer; and

(d) the offender must take part in a rehabilitative and reintegrative needs assessment and/or programme if and when directed to do so by a probation officer.

(2) The conditions imposed in paragraphs (1)(c) and (d) do not apply if, and to the extent that, they are inconsistent with any special conditions imposed by the Board.

53 Special conditions of parole

(1) The Board may impose such special condition or conditions related to the rehabilitation or integration of an offender as the Board thinks necessary.

(2) An offender may not be subject to a special condition that requires the offender to take prescribed medication.

54 Offence related to breach of parole

(1) An offender commits an offence if the offender fails without reasonable excuse to comply with any condition of parole.

(2) An offender who commits an offence against subsection (1) is liable on conviction to a fine not exceeding VT10000 or to imprisonment not exceeding 3 months.

55 Establishment of the Community Parole Board

(1) The Community Parole Board is established.

(2) The Board consists of:

(a) a Judge of the Supreme Court or a Magistrate of the Magistrates Court who is the chairperson; and

(b) two other persons who must be of high standing in the community, one of whom must be a woman.

(3) The chairperson is to be appointed by the Chief Justice.

(4) The other Board members are to be appointed by the Minister after consultation with the Director.

(5) A member of the Board holds office for a term of 3 years and may be reappointed.

(6) A quorum of the Board shall comprise of the chairperson and two other members appointed under paragraph (2)(b).

(7) If the chairperson is unable to attend a particular meeting of the Board, the Chief Justice may nominate another Judge of the Supreme Court or another Magistrate of the Magistrates Court to preside at that particular meeting of the Board as chairperson.

(8) The Department of Correctional Services is to provide support administrative services to the Board.

56 Appointment of alternate members

(1) The Minister is to appoint 6 other persons as alternate members.

(2) The alternate members must be of high standing in the community, 3 of whom must be women.

(3) If for any reason an appointed member is not able to attend a parole hearing, the Director must notify the alternate to attend the parole hearing.

57 Meetings and Procedure of the Board

(1) Meetings of the Board are to be held at such time and place as the Chairperson decides .

(2) Subject to the provisions of this Act and any regulations made under this Act, the Board may regulate its own procedure as it thinks fit.

58 Functions of the Board

The functions of the Board are:

(a) to decide as to the release on parole of any offender eligible for parole under section 51; and

(b) to set conditions for detainees released on parole; and

(c) to decide as to the remission, suspension or variation of any parole condition or as to the imposition of any additional condition of parole; and

(d) to hear applications for release on compassionate grounds and if appropriate direct the release of a detainee on compassionate grounds subject to any condition the Board imposes; and

(e) to review its decision not to release detainees or a offender on parole or a condition it has imposed; and

(f) to process and determine applications for recall of offenders on parole; and

(g) to record its decisions in writing, maintain a register of its decisions and to make its decisions available as matter of public record; and

(h) to develop policies as to how to discharge its functions under this section and to review and amend those policies as it sees fit.

59 Release from correctional centre on parole

(1) The Board is to consider every detainee for parole within 1 month of that detainee becoming eligible for parole under section 51.

(2) In considering whether to grant a release on parole under subsection (1) the Board must have regard to the following:

(a) a pre-release report prepared by a probation officer; and

(b) a submission from the detainee or his or her legal representative; and

(3) If the Board decides not to grant parole the detainee may be given a future date as to when his or her parole will be considered.

(4) In addition to subsection (2), when considering whether to grant a release on parole the Board must take into account:

(a) the safety of the community; and

(b) the detainee’s response to imprisonment (including behaviour and where relevant willingness to undertake rehabilitative and reintegration programmes); and

(d) the detainee’s proposed release plans as set out in the pre-release report or submissions of the detainee to the Board.

60 Variation or cancellation of parole

(1) An offender who is subject to parole, or a probation officer, may apply to the Board for an order under subsection (3) on the grounds that:

(a) the offender is unable to comply, or has failed to comply, with any of the conditions of his or her parole; or

(b) any programme to which the offender is subject, is no longer available or suitable for the offender; or

(c) having regard to any change in circumstances since his or her parole was imposed and to the manner in which the offender has responded to parole:

(i) the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of conditions, or the imposition of additional conditions; or

(ii) the continuation of parole is no longer necessary in the interest of the community or the offender.

(2) A probation officer may apply for an order under subsection (3) if an offender who is subject to parole is convicted of an offence punishable by imprisonment.

(3) On application under subsection (1) or subsection (2), the Board may, if it is satisfied that the grounds on which the application is based have been established:

(a) remit, suspend, or vary conditions imposed by the Board; or

(b) impose additional conditions; or

(d) cancel the parole and substitute and impose a new term of parole with any new or special conditions it thinks necessary.

(4) If the Board cancels parole under this section, the parole expires on the date that the order is made or on any other date that the Board may specify.

(5) If an application is made under this section for the remission, suspension, or variation of any condition imposed by the Board, a probation officer may suspend the condition until the application has been heard and disposed of.

61 Recall of offenders on Parole

(1) The Director or a probation officer may make a recall application to the Board if an offender has been released on parole or compassionate leave on the grounds that:

(a) the detainee poses an undue risk to the safety of the community or to any person or class of persons; or

(b) the offender has breached his or her parole conditions; or

(2) When the application to recall is made, the sentence to which the application relates ceases to run from that date until the application has been decided.

62 Interim recall order

(1) If applied for by the Director or probation officer, an interim recall order must only be made by the chairperson of the Board if the chairperson is satisfied that the detainee poses an undue risk to the community or a person or class of persons or is about to abscond.

(2) If the chairperson decides not to make an interim order then the offender must come before the Board for the application to be decided as notified and the chairperson may issue a warrant for his or her attendance if required.

(3) If an interim recall order is made the detainee must be retained in a correctional centre until the date that the recall application is heard.

63 Recall Order

The Board may make the final recall order and if this occurs, the offender must return to the correctional centre and serve out his or her sentence or until further release under the provisions of this Act.

PART 7 MISCELLANEOUS

64 Application of the Public Service Act No. 11 of 1998

The provisions of the Public Service Act No. 11 of 1998 applies to the Director and other officers employed by the Public Service Commission under this Act.

65 Protection from liability

(1) There shall be no liability against the State, the Director, a staff member or against any other authorised person, to recover damages for any act, matter or thing done or omitted to be done in good faith arising from a breach of the provisions of this Act or any other Act dealing with the correctional service system.

(2) A person is not exempted from liability under subsection (1) for any act or omission that constitutes bad faith or gross negligence on the part of that person.

66 General Offences

(1) A person who conveys, brings or in any manner introduces or causes to be introduced any article into a correctional centre or attempts to convey, bring or in any manner introduce any article into a correctional centre:

(a) with deliberate intent to breach the order, security or good administration of the correctional centre; or

(b) where the article is of the kind likely to jeopardise the order, security or good administration of the correctional centre,

commits an offence and shall be liable to be punished in accordance with section 67.

(2) A person who without the permission of the Director or correctional centre manager, conveys, brings or in any manner takes, removes or causes to be taken or removed out of a correctional centre, any article that he or she did not have in his or her possession when he or she was admitted into the correctional centre, commits an offence and shall be liable to be punished in accordance with section 67.

(3) A person who, for the purposes of obtaining permission to convey, bring or remove any article out of a correctional centre, knowingly makes a false statement or representation or knowingly gives information that is false in a material particular commits an offence and shall be liable to be punished in accordance with section 67.

(4) A person who, without permission of the correctional centre manager, enters into a correctional centre, or photographs a detainee, or attempts to enter the correctional centre or to photograph a detainee, commits an offence and shall be liable to be punished in accordance with section 67.

(5) This section does not apply to detainees.

67 Punishment for General Offences

A person found guilty of an offence under section 66 shall be liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding VT200, 000.

68 Regulations

(1) The Minister make regulations prescribing all matters that are required or permitted under this Act or are, necessary, or convenient to be prescribed, for giving effect to the purposes of this Act.

(2) Without limiting the generality of the provisions of subsection (1), the Minister may make regulations providing for the following matters:

(a) making provision for the order, security, and good administration of correctional centres; and

(b) for the safe custody of detainees and making provision for the safe, secure and humane containment of detainees in correctional centres; and

(c) prescribing the classification, separation, segregation, diet, instruction, treatment, employment, discipline, medical and other treatment of detainees; and

(d) regulating identification processes and the recording of such and any other particulars of detainees; and

(e) providing for the sale or disposal of uncollected, abandoned or unclaimed property left at a correctional centre and the disposal of the proceeds of sale; and

(f) providing for the discipline of detainees including regulating the granting and loss of privileges, laying of complaints relating to offences against discipline and prescribing procedures for the hearing of those complaints; and

(g) prescribing procedures for the dealing of complaints; and

(h) providing for the inspection of correctional centres and probation offices; and

(i) providing for the management, care, treatment, wellbeing and integration of detainees and persons undergoing a community based sentence including that of supervision and community work; and

(j) regulating the property that may be kept at a correctional centre on behalf of a detainee; and

(k) regulating the association of male and female detainees, minor and adult detainees and convicted and untried detainees; and

(l) regulating the treatment of unconvicted detainees; and

(m) regulating the provision of notices to detainees charged with offences against discipline; and

(n) regulating the admission, removal under custody or release of detainees; and

(o) regulating admission of visitors to a correctional centre; searching procedures, and meeting arrangements; and

(p) regulating the sending and receiving of correspondence by detainees; and

(q) regulating the programmes of reform, rehabilitation and parole that may be established; and

(r) any other matter relating to the proper management of correctional centres under this Act.

(3) In proposing regulations under this section, regard must be given to the provisions of section 1.

(4) Any regulation made under this section may apply to all correctional centres or to a particular class of correctional centres or generally to all detainees or to any specified class or classes of detainees.

69 Commencement

This Act shall commence on the date on which it is published in the Gazette.

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