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Correctional Services (Amendment) Act 2007

Commencement: 18 February 2008

REPUBLIC OF VANUATU

CORRECTIONAL SERVICES (AMENDMENT)
ACT NO 13 OF 2007

Arrangement of Sections

1. Amendment
2. Commencement

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Assent: 24/12/2007
Commencement: 18/02/2008

CORRECTIONAL SERVICES (AMENDMENT) ACT
NO 13 OF 2007

An Act to amend the Correctional Services Act No. 10 of 2006.

Be it enacted by the President and Parliament as follows:

1 Amendment

The Correctional Services Act No. 10 of 2006 is amended as set out in the Schedule.

2 Commencement

This Act commences on the day on which it is published in the Gazette.

_______________________

SCHEDULE

AMENDMENTS OF THE CORRECTIONAL SERVICES AMENDMENT ACT NO. 10 OF 2006

1. Section 2 (Interpretation)

Insert in its correct alphabetical position:

"Penal Code Act means the Penal Code Act [CAP 135];"

2. After paragraph 4(1)(k)

Insert

"(ka) to ensure that every person is protected from an illegal or improper search within a correctional centre; and"

3. After section 38

Insert

"Division 4A – Searches within the Correctional Centre

38A Rub down search

For the purposes of this Division:

rub down search means a type of search carried out on a detainee where a correctional officer may run or pat his or her hand over the body of the detainee, search any pocket or pouch in the detainee’s clothing, and visually inspect the detainee’s mouth, hands, feet soles and hair.

38B Power to search

(1). For the purposes of detecting the introduction of unauthorised items or illegal items into a correctional centre, the Director may by writing, authorise correctional officers to carry out any of the following:

(a). to search and examine any baggage, package or other item carried by any detainee, staff member or visitor, into a correctional centre; or

(b). to search any correctional centre building, or equipment located within the boundary of the correctional centre, or the general boundary of the correctional centre; or

(c). to search any detainee by using the rub down search.

(2). Despite paragraph 1(a), a correctional officer may only search a visitor if the correctional officer has reasonable cause to suspect that the visitor has in his or her possession an unauthorised or illegal item.

(3). A detainee must be searched upon admission to a correctional centre and at such times when a detainee is returning to the correctional centre after a temporary release or any other form of authorised absence from the correctional centre.

(4). Any search carried out in accordance with this section must be conducted within the boundary of a Correctional Centre.

38C. Random search on detainees

In addition to section 38B and for the purposes of maintaining the safety and security of a correctional centre, the Director may in writing, authorise correctional officers to carry out a search on any detainee, or search any property belonging to a detainee, at any time.

38D. Manner of searching

(1). All searches must be conducted with due regard to decency and respect and in a manner that affords the person being searched with the greatest degree of privacy and dignity, consistent with the necessity of discovering any concealed item.

(2). A correctional officer must always search a detainee in the presence of at least one other correctional officer or a police officer.

(3). A rub down search may only be carried out by persons of the same sex as the person who is to be searched.

(4). A correctional officer must not internally examine or use any instrument, device or object for the purpose of internally examining a detainee.

38E Reporting and handling of unauthorised or illegal items

(1). All unauthorised or illegal items discovered in the course of any search are to be recorded and secured.

(2). The correctional officer responsible for a search where an unauthorised or illegal item is found, must issue a report concerning the nature of the discovered items to the correctional centre manager as soon as practicable.

All discovered unauthorised or illegal items must be sent to the Police for destruction or to be retained as evidence in circumstances where a criminal investigation is initiated."

4. Subsection 48(1)
Delete the words "or community work", substitute ", community work or parole"

5. Subsection 51(1)
Delete "subsection (2) and subsection (3)", substitute "subsections (2) and (3), and section 51A"

6. After subsection 51(1)

Insert

"(1A). Where an offender is sentenced to a term of imprisonment and part of that term is suspended, that offender’s eligibility for parole will be determined by the period of imprisonment that is to be served, which does not include the period of imprisonment that is suspended."

7. Subsection 51(4)

After the words "his or", insert "her"

8. After section 51

Insert

"51A. Detainees not eligible for parole

Despite section 51, a detainee who is sentenced to a term of imprisonment in default of the payment of a fine, is not eligible for parole."

9 After section 57

Insert

"57A. Sitting allowance

(1). The members of the Board are entitled to a sitting allowance for each day on which the Board meets.

(2). The Minister is to determine by Order, the rate of sitting allowance for the members of the Board.

(3). To avoid doubt, an alternate member is entitled to receive a sitting allowance if the alternate member attends a meeting of the Board by reason of the appointed member not being able to attend that meeting."

10. After subsection 59(1)

Insert

"(1A). Despite subsection (1), the Board may consider a detainee’s release on parole, one month before he or she is eligible for release on parole provided that the date of release of the detainee is after the date on which he or she is eligible for release on parole."

11. Subsection 59(2)

Repeal the subsection, substitute,

"(2). In deciding whether or not to grant a release on parole under subsection (1), the Board must:

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

(b). consider any written submission from the detainee and if practicable provide the opportunity for the detainee to present his or her submission in person to the Board; and

(c). allow the detainee to be represented by a legal counsel if the detainee so requires; and

(d). allow any person to speak in support of the detainee if the detainee so requires.

(2A). The Board is not required to obtain a report from a victim but if a report is available the Board will consider matters in that report.

(2B). A victim is entitled to appear and make oral submissions to the Board. "

12. Subsection 59(3)

Delete "may", substitute "must"

13. Paragraph 59(4)(d)

Delete ".", substitute "; and"

14. After paragraph 59(4)(d)

Insert

"(e). the principle that a detainee is not to be detained for any further period unless his or her release would be detrimental to the safety of the community; and

(f). that any parole conditions or detention conditions of a detainee are not inconsistent with the Constitution."

15. After section 63

Insert

"PART 6A PROSECUTION OF CERTAIN OFFENCES UNDER THE PENAL CODE ACT AND THIS ACT

63A. Public Prosecutor may appoint certain persons to be State Prosecutors

(1). The Public Prosecutor may, by instrument in writing, appoint:

(a). a correctional centre manager to be a State Prosecutor for the purpose of prosecuting any detainee, admitted to the correctional centre with a valid committal warrant, who has committed the offence of escape under section 84 of the Penal Code Act; and

(b). a probation manager or a probation officer to be a State Prosecutor for the purpose of prosecuting, a detainee admitted to a correctional centre with a valid committal warrant who has committed an offence of escape under section 84 of the Penal Code Act, and any breach of:

(i). a supervision order under section 58L of the Penal Code Act; or

(ii). a community work order under section 58Z of the Penal Code Act; or

(iii). a condition of parole order under section 54 of this Act.

(2). A correctional centre manager, a probation manager, or a probation officer is not to be appointed to prosecute as a State Prosecutor unless:

(a). he or she has sufficient experience and ability to undertake the duties of a State Prosecutor; and

(b). he or she is of good character.

(3). In exercising prosecution functions under this section, a correctional centre manager, a probation manager and a probation officer are under the directions of the Public Prosecutor.

(4). To avoid doubt, a correctional centre manager, a probation manager or a probation officer cannot commence prosecution proceedings for an offence of
escape under section 84 of the Penal Code Act, against any detainee awaiting trial or sentence."