Appendices

Appendix 2A: Information privacy principles

Principle 1 Manner and purpose of collection of personal information

Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:

(a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and

(b) the collection of the information is necessary for or directly related to that purpose.

Personal information shall not be collected by a collector by unlawful or unfair means.

Principle 2 Solicitation of personal information from individual concerned

Where:

(a) a collector collects personal information for inclusion in a record or in a generally available publication; and

(b) the information is solicited by the collector from the individual concerned;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, before the information is collected, the individual concerned is generally aware of:

(c) the purpose for which the information is being collected;

(d) if the collection of the information is authorised or required by or under law-the fact that the collection of the information is so authorised or required; and

(e) any person to whom, or any body or agency to which it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first-mentioned person, body or agency to pass on that information.

Principle 3 Solicitation of personal information generally

Where:

(f) a collector collects personal information for inclusion in a record or in a generally available publication; and

(g) the information is solicited by the collector;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:

(h) the information collected is relevant to that purpose and is up-to-date and complete; and

(i) the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Principle 4 Storage and security of personal information

1. A record-keeper who has possession or control of a record that contains personal information shall ensure:

(j) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access use, modification or disclosure, and against other misuse, and

(k) that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.

Principle 5 Information relating to records kept by record-keeper

2. A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

(l) whether the record-keeper has possession or control of any records that contain personal information, and

(m) if the record-keeper has possession or control of a record that contains such information:

the nature of that information

the main purposes for which that information is used, and

the steps that the person should take if the person wishes to obtain access to the record.

A record-keeper is not required under Clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

A record-keeper shall maintain a record setting out:

(n) the nature of the records of personal information kept by or on behalf of the record-keeper

(o) the purpose for which each type of record is kept

(p) the classes of individuals about whom records are kept

(q) the period for which each type of record is kept

(r) the persons who are entitled to have access to personal information

(s) the steps that should be taken by persons wishing to obtain access to that information.

A record-keeper shall:

(t) make the record maintained under Clause 3 of this Principle available for inspection by members of the public; and

(u) give the Commissioner, in the month of June in each year, a copy of the record so maintained.

Principle 6 Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

Principle 7 Alteration of records containing personal information

3. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:

(v) is accurate, and

(w) is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up-to-date, complete and not misleading.

The obligation imposed on a record-keeper by Clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.

Where:

(a) the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned, and

(x) no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth,

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

Principle 8 Record-keeper to check accuracy etc. of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up-to-date and complete.

Principle 9 Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

Principle 10 Limits on use of personal information

4. A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:

(y) the individual concerned has consented to the use of the information for that other purpose

(z) the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person

(aa) use of the information for that other purpose is required or authorised by or under law

(bb) use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, or

(cc) the purpose for which the information is used is directly related to the purpose for which the information was obtained.

Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record-keeper shall include in the record containing that information a note of that use.

Principle 11 Limits on disclosure of personal information

5. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

(dd) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency

(ee) the individual concerned has consented to the disclosure

(ff) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person

(gg) the disclosure is required or authorised by or under law, or

(hh) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.

A person, body or agency to whom personal information is disclosed under Clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

Application of information privacy principles

6. Information Privacy Principles 1, 2, 3, 10 and 11 apply only in relation to information collected after the commencement of the Privacy Act 1988('the Act).

Information Privacy Principles 4 to 9, inclusive, apply in relation to information contained in a record in the possession or under the control of any agency, whether the information was collected before, or is collected after, the commencement of the Act.

Agencies to comply with information privacy principles

An agency shall not do an act, or engage in a practice, that breaches an Information Privacy Principle.

Guidelines relating to tax file number information

7. The Commissioner shall, by notice in writing, issue guidelines concerning the collection, storage, use and security of tax file number information.

A guideline issued under sub-section (1) is a disallowable instrument for the purposes of Section 46A of the Acts Interpretation Act 1901.

Section 48 of the Acts Interpretation Act 1901 applies to guidelines issued under Sub-Section (1) as if paragraph (1) (b) of Section 48 were omitted and the following paragraph substituted:

(ii) shall, subject to this section, take effect:

(i) on the first day on which the guidelines are no longer liable to be disallowed, or to be deemed to be disallowed, under this section; or

if the guidelines make provision for their commencement after the day referred to in sub-paragraph (i), in accordance with that provision; and'

Until the first guidelines take effect for the purposes of sub-section (1), the interim guidelines set out in Schedule 2 [Privacy Act 1988] have effect, for the purposes of any provision of the Act other than sub-Section (1), (2), or (3), as if they were guidelines issued under sub-section (1).

File number recipients to comply with guidelines

A file number recipient shall not do an act, or engage in a practice, that breaches a guideline issued under Section 17.

Appendix 2B: Public interest determination

Privacy Act 1988

Part VI

Public Interest Determination no. 7
(As amended by Public Interest Determination 7A)
(PID 7)

Dated 21 October 1997

IN RESPECT OF:

Application no 7
Applicant Department of Foreign Affairs and Trade
Nature of application to permit disclosure of personal information of Australians overseas to their Next of Kin in certain limited circumstances.
Information privacy
Principle involved Information Privacy Principle 11

Determination

Under section 72 of the Privacy Act 1988 I give notice of my Determination as follows:

A waiver is granted from compliance with Information Privacy Principle 11.1 in relation to the acts or practices outlined in this Determination. Information Privacy Principle 11.1 of the Privacy Act 1988 places limits on disclosure of personal information as follows:

(a) a record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

(b) the individual concerned is reasonably likely to be aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency

(c) the individual concerned has consented to the disclosure

(d) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person

(e) the disclosure is required or authorised by law

(f) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

1. Acts or practices permitted

The Department of Foreign Affairs and Trade ('the department') may disclose personal information about Australian nationals travelling overseas in the following circumstances:

1. Where the department believes on reasonable grounds that:

(g) there is a serious threat to the health of an Australian overseas, and

(h) the individual concerned is unable because of the nature of his or her illness to give informed consent to the disclosure, and

(i) the disclosure is necessary to reduce a threat to the life or health of the individual concerned, or

(ii) the disclosure is necessary for humanitarian reasons related to the individual or the family

… the department may disclose, on its own initiative, personal information about the individual to his or her Next of Kin.

2. Where:

(i) an Australian overseas has been arrested or imprisoned, and

(j) information about such an event has been made publicly available,

… the department may, in response to a request from the individual's Next of Kin, confirm, correct or clarify information about the facts of the event that have already been made publicly available. Any disclosure of additional personal information must be permitted by another provision of this Determination or by IPP 11.

3. Where:

(k) a request for welfare and whereabouts information about an Australian overseas has been made by that individual's Next of Kin, and

(l) the individual has refused his or her consent to the disclosure of some or all of the requested information

… the department may disclose to the Next of Kin the fact that the individual has refused his or her consent to the disclosure of some or all of the requested information. In making such disclosure, the department should have regard to any compelling reasons given by the individual for no information to be provided at all.

2. Conditions

The Determination shall be subject to the following conditions:

4. Decisions concerning disclosures made under this Determination may only be made by a senior officer of the department authorised by the Minister.

5. The department shall develop guidelines subject to the Privacy Commissioner's approval to assist with the application of this Determination. The guidelines should stipulate that the provisions of the Determination should not be relied upon if a disclosure can otherwise be permitted by Information Privacy Principle 11. They shall, inter alia:

(m) provide guidance on ascertaining the status of a person as the 'Next of Kin' of an Australian national overseas

(n) clarify the interpretation of the terms 'humanitarian reasons' and 'publicly available information'

(o) require the senior authorised officer to take into account the sensitive nature of health or criminal records in coming to a view.

6. The department shall take reasonable steps to ensure that there is general public awareness about the Determination.

7. The department is required, at the end of each financial year, to report to the Privacy Commissioner on the number of occasions when disclosure of information under this Determination took place, and under which provision of the Determination each disclosure was authorised.

3. Monitoring

The Privacy Commissioner shall monitor the operation of this Determination and notes that if her office considers that the Determination is not being observed, she may make a further Determination revoking or varying her Determination.

Dated this 21st day of October 1997

(signed)



Moira Scollay
Privacy Commissioner

Appendix 2C: Summary of the Privacy Act waiver and consular work

This summary is meant only to be a quick reference guide. In any case when a waiver is considered, reference should be made to the full text of this chapter.

What is the waiver?

The provisions of the Privacy Act 1988 apply to all personal information held at posts or in the department in relation to consular clients.

The Department has been granted a limited waiver to the general prohibition on disclosing personal information without consent in certain types of cases and under certain conditions.

Why is the waiver invoked?

The waiver can only be invoked where:

(a) there is no exemption available under the Act, usually under IPP 11, and

(b) there are compelling reasons of a health or humanitarian nature that in the opinion of the Delegate warrant the release of otherwise non-releasable material.

In what type of cases can the waiver be invoked?

The waiver only applies in the following three case types:

Who can receive material released under the waiver?

In general terms release may be made to the consular client's Next of Kin. A Next of Kin is:

Who invokes the waiver?

There are only three designated positions within the department whose occupants may invoke the waiver. The two positions are:

Appendix 3A: Australia: Crimes Act 1914: part iiia - child sex tourism

Division1-Preliminary

50AA General

(1) in this Part:

act of indecency has the meaning given by section50AB.

Australia includes the external Territories.

induce means induce by threats, promises or otherwise.

offence, in the case of a reference to an offence against this Part or against a particular provision of it, has a meaning affected by subsections(2) and (3) of this section.

Sexual intercourse has the meaning given by section50AC.

vagina includes:

(2) any part of a female person's genitalia; and

(3) a surgically constructed vagina.

(4) A reference in this Part (except section50DB) to an offence against this Part or against a particular provision of it includes:

(a) a reference to:

(5) an offence against section6 or 50DB; or

(6) an offence against section11.1 or 11.5 of the Criminal Code;

that relates to an offence against this Part or against that provision of it; and

(7) a reference to an offence against this Part, or against that provision of it, because of section11.2 or 11.3 of the Criminal Code.

(8) A reference in section50DB to an offence against this Part or against a particular provision of it does not include a reference to such an offence because of section11.2 of the Criminal Code.

(9) Section11.4 of the Criminal Code does not apply to an offence against this Part.

(10) Section11.5 of the Criminal Code does not apply to an offence against section50DB.

50AB Meaning of act of indecency

(1) in this Part:

act of indecency means an act that:

(a) is of a sexual nature; and

(2) involves the human body, or bodily actions or functions; and

(3) is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community.

(4) to avoid doubt, act of indecency includes an indecent assault.

50AC Meaning of sexual intercourse

(1) in this Part:

sexual intercourse means:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or

(2) the penetration, to any extent, of the vagina or anus of a person, carried out by another person by an object; or

(3) fellatio; or

(4) cunnilingus; or

(5) the continuation of any activity mentioned in paragraph(a), (b), (c) or (d).

(6) Paragraph(1)(a) or (b) does not apply to an act of penetration if:

(a) it is carried out for a proper medical or hygienic purpose; or

(7) it is carried out for a proper law enforcement purpose.

50AD Who can be prosecuted for an offence committed overseas

A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:

(a) an Australian citizen; or

(8) a resident of Australia; or

(9) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(10) any other body corporate that carries on its activities principally in Australia.

Division2-Sexual offences against children overseas

50BA Sexual intercourse with child under 16

(1) A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.

Penalty: Imprisonment for 17 years.

(2) for the purposes of an offence against subsection(1), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the sexual intercourse is engaged in outside Australia;

(3)that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: for absolute liability, see section6.2 of the Criminal Code.

Note 2: for a defence based on belief about age, see section50CA.

50BB Inducing child under 16 to engage in sexual intercourse

(1) A person must not induce a person who is under 16 to engage in sexual intercourse with a third person outside Australia and in the presence of the first‑mentioned person.

Penalty: Imprisonment for 17 years.

(2) for the purposes of an offence against subsection(1), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the sexual intercourse is engaged in outside Australia;

(3) that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: for absolute liability, see section6.2 of the Criminal Code.

Note 2: for a defence based on belief about age, see section50CA.

50BC Sexual conduct involving child under 16

(1) A person (the first person) contravenes this section if, while the first person is outside Australia:

(a) the first person commits an act of indecency on a person who is under 16; or

(2) the first person submits to an act of indecency committed by a person who is under 16; or

(3) the first person commits an act of indecency in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the act; or

(4) the first person submits to an act of indecency committed in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the act; or

(5) the first person engages in sexual intercourse with another person in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the sexual intercourse.

Penalty: Imprisonment for 12 years.

(6) for the purposes of an offence against subsection(1), absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a) that the first person is outside Australia;

(7) that the person referred to in that subsection as being under 16 is in fact under 16;

(8) in the case of an offence against paragraph(1)(a), (b), (c) or (d)-that the act of indecency referred to in that paragraph is in fact an act of indecency.

Note 1: for absolute liability, see section6.2 of the Criminal Code.

Note 2: for a defence based on belief about age, see section50CA.

50BD Inducing child under 16 to be involved in sexual conduct

(1) A person (the first person) must not induce a person who is under 16 to commit, to submit to, or to be present while a third person commits, an act of indecency that:

(a) is committed outside Australia and in the presence of the first person; and

(2) is not committed by or on the first person.

Penalty: Imprisonment for 12 years.

(1A) for the purposes of an offence against subsection(1), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the act of indecency is committed outside Australia;

(3) that the person referred to in that subsection as being under 16 is in fact under 16;

(4) that the act of indecency referred to in that subsection is in fact an act of indecency.

Note 1: for absolute liability, see section6.2 of the Criminal Code.

Note 2: for a defence based on belief about age, see section50CA.

(5) A person (the first person) must not induce a person who is under 16 to be present while a third person engages in sexual intercourse with a fourth person outside Australia and in the presence of the first person.

Penalty: Imprisonment for 12 years.

(6) for the purposes of an offence against subsection(2), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the sexual intercourse is engaged in outside Australia;

(7) that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: for absolute liability, see section6.2 of the Criminal Code.

Note 2: for a defence based on belief about age, see section50CA.

Division3-Defences

50CA Defence based on belief about age

It is a defence to a prosecution for an offence against Division2 that the defendant believed at the time of the sexual intercourse or act of indecency that the person in relation to whom the offence was allegedly committed was 16 or over.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

50CB Defence based on valid and genuine marriage

It is a defence to a prosecution for an offence against Division2 that:

(a) at the time of the sexual intercourse or act of indecency, there existed between the defendant and the person in relation to whom the offence was allegedly committed a marriage that was valid, or recognised as valid, under the law of:

(i) the place where the marriage was solemnised; or

(8) the place where the offence was allegedly committed; or

(9) the place of the defendant's residence or domicile; and

(10) when it was solemnised, the marriage was genuine.

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code).

50CC Defence must be proved on balance of probabilities

A defence under this Division must be proved on the balance of probabilities.

50CD Jury may consider reasonableness of alleged belief

in determining whether the defendant believed as mentioned in section50CA, the jury may take into account whether the alleged belief was reasonable in the circumstances.

Division4-Offences of benefiting from, or encouraging, offences against this Part

50DA Benefiting from offence against this Part

(1) A person contravenes this section if:

(a) the person does an act, or makes an omission, whether within or outside Australia, with the intention of benefiting, whether financially or not, from conduct of a kind that would constitute an offence against this Part; and

(2) the act or omission is reasonably capable of resulting in the person benefiting from such conduct;

whether or not that conduct in fact occurs or has occurred.

Penalty: Imprisonment for 17 years.

(1A) Absolute liability applies to paragraph(1)(b).

Note: for absolute liability, see section6.2 of the Criminal Code.

(1B) in a prosecution for an offence against subsection(1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph(1)(a) would be of a kind that would constitute an offence against this Part.

(3) An example of an act covered by paragraph(1)(b) is profiting from an arrangement that facilitates an offence against this Part.

50DB Encouraging offence against this Part

(1) A person contravenes this section if:

(a) the person does an act, or makes an omission, whether within or outside Australia, with the intention of encouraging conduct of a kind that would constitute an offence against this Part (other than this section); and

(2) the act or omission is reasonably capable of encouraging such conduct;

whether or not that conduct in fact occurs.

(1A) Absolute liability applies to paragraph(1)(b).

Note: for absolute liability, see section6.2 of the Criminal Code.

(1B) in a prosecution for an offence against subsection(1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph(1)(a) would be of a kind that would constitute an offence against this Part (other than this section).

(3) in this section:

encourage means:

(a) encourage, incite to, or urge, by any means whatever, for example, by written, electronic or other form of communication; or

(4) aid, facilitate, or contribute to, in any way whatever.

(5) These are examples of acts covered by paragraph(1)(b):

(a) organising an arrangement that facilitates an offence against this Part (other than this section);

(6) assisting a person to travel outside Australia in order to commit an act that would constitute an offence against Division2;

(7) advertising an offer so to assist a person or an arrangement for so assisting a person.

50EA When court may take evidence by video link

in a proceeding for an offence against this Part, the court may direct that a witness give evidence by video link if:

(a) the witness will give the evidence from outside Australia; and

(8) the witness is not a defendant in the proceeding; and

(9) the facilities required by section50EC are available or can reasonably be made available; and

(10) the court is satisfied that attendance of the witness at the court to give the evidence would:

(i) cause unreasonable expense or inconvenience; or

11) cause the witness psychological harm or unreasonable distress; or

(12) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

(13) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.

50EB Motion of parties

A direction can only be made on application by a party to the proceeding.

50EC Technical requirements for video link

(1) A witness can give evidence under a direction only if:

(a) the courtroom or other place in Australia where the court is sitting (the Australian point); and

(2) the place where the evidence is given (the overseas point);

are equipped with video facilities that:

(3) enable appropriate persons at the Australian point to see and hear the witness give the evidence; and

(4) enable appropriate persons at the overseas point to see and hear appropriate persons at the Australian point.

(5) in subsection(1):

appropriate persons means such persons as the court considers appropriate.

50ED Application of laws about witnesses

(1) A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.

(2) Subsection(1) has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.

50EE Administration of oaths and affirmations

An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:

(a) by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or

(3) as follows:

(i) on behalf of the court and as directed by it;

(4) by a person (whether an Australian official or not) authorised by the court;

(5) at the place where the witness is to give the evidence.

50EF Expenses

A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Division.

50EG Other laws about foreign evidence not affected

This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding for an offence against this Part.

Division6-Other rules about conduct of trials

50FA Certain material taken to be evidence of age

(1) in determining for the purposes of this Part whether a person is under 16, or was under 16 at a particular time, or how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

(a) the person's appearance;

(2) medical or other scientific opinion;

(3) a document that is or appears to be an official or medical record from a country outside Australia;

(4) a document that is or appears to be a copy of such a record.

(5) This section does not make any other kind of evidence inadmissible, and does not affect a prosecutor's duty to do all he or she can to adduce the best possible evidence for determining the question.

(6) If, on a trial for an offence against this Part, evidence may be treated as admissible because of subsection(1), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

50FB Alternative verdicts

(1) If, on a trial for an offence against section50BA, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against section50BC, it may find the defendant not guilty of the offence against section50BA but guilty of the offence against section50BC.

(2) If, on a trial for an offence against section50BB, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against subsection 50BD(1), it may find the defendant not guilty of the offence against section50BB but guilty of the offence against subsection 50BD(1).

50FC Double jeopardy

If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Part in respect of that conduct.

50FD Sentencing

(1) in determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Division2, the court must take into account the age and maturity of the person in relation to whom the offence was committed, so far as these matters are relevant and known to the court.

(2) The matters mentioned in subsection(1) are in addition to any other matters the court must take into account, for example, the matters mentioned in subsection 16A(2).

Division7-Saving of other laws

50GA Saving of other laws

This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

Appendix 6A: Standard minimum rules for the treatment of prisoners

Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXlV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

Preliminary observations

1. The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.

2. In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.

3. On the other hand, the rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole. It will always be justifiable for the central prison administration to authorise departures from the rules in this spirit.

4. (1) Part I of the rules covers the general management of institutions, and is applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to 'security measures' or corrective measures ordered by the judge.

(2) Part II contains rules applicable only to the special categories dealt with in each section. Nevertheless, the rules under section A, applicable to prisoners under sentence, shall be equally applicable to categories of prisoners dealt with in sections B, C and D, provided they do not conflict with the rules governing those categories and are for their benefit.

5. (1) The rules do not seek to regulate the management of institutions set aside for young persons such as Borstal institutions or correctional schools, but in general part I would be equally applicable in such institutions.

(2) The category of young prisoners should include at least all young persons who come within the jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to imprisonment.

Part I: Rules of general application

Basic principle

(1) The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

(2) On the other hand, it is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.

Register

(1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received:

Information concerning his identity;

The reasons for his commitment and the authority therefore;

The day and hour of his admission and release.

(2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.

Separation of categories

The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate;

Untried prisoners shall be kept separate from convicted prisoners;

Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;

Young prisoners shall be kept separate from adults.

Accommodation

(1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

(2) Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the institution.

All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.

In all places where prisoners are required to live or work,

The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.

All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.

Personal hygiene

Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.

In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.

Clothing and bedding

(1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.

(2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.

(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorised purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.

If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.

Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

Food

(1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.

(2) Drinking water shall be available to every prisoner whenever he needs it.

Exercise and sport

(1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. to this end space, installations and equipment should be provided.

Medical services

(1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organised in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.

(2) Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.

(3) The services of a qualified dental officer shall be available to every prisoner.

(1) In women's institutions there shall be special accommodation for all necessary pre-natal and post-natal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certificate.

(2) Where nursing infants are allowed to remain in the institution with their mothers, provision shall be made for a nursery staffed by qualified persons, where the infants shall be placed when they are not in the care of their mothers.

The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.

(1) The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.

(2) The medical officer shall report to the director whenever he considers that a prisoner's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.

(1) The medical officer shall regularly inspect and advise the director upon:

The quantity, quality, preparation and service of food;

The hygiene and cleanliness of the institution and the prisoners;

The sanitation, heating, lighting and ventilation of the institution;

The suitability and cleanliness of the prisoners' clothing and bedding;

The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.

(2) The director shall take into consideration the reports and advice that the medical officer submits according to rules 25 (2) and 26 and, in case he concurs with the recommendations made, shall take immediate steps to give effect to those recommendations; if they are not within his competence or if he does not concur with them, he shall immediately submit his own report and the advice of the medical officer to higher authority.

Discipline and punishment

Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.

(1) No prisoner shall be employed, in the service of the institution, in any disciplinary capacity.

(2) This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.

The following shall always be determined by the law or by the regulation of the competent administrative authority:

Conduct constituting a disciplinary offence;

The types and duration of punishment which may be inflicted

The authority competent to impose such punishment.

(1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence.

(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.

(3) Where necessary and practicable the prisoner shall be allowed to make his defence through an interpreter.

Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.

(1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.

(2) The same shall apply to any other punishment that may be prejudicial to the physical or mental health of a prisoner. in no case may such punishment be contrary to or depart from the principle stated in rule 31.

(3) The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.

Instruments of restraint

Instruments of restraint, such as handcuffs, chains, irons and straitjackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:

As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;

On medical grounds by direction of the medical officer;

By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.

The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.

Information to and complaints by prisoners

(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorised methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.

(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.

(1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorised to represent him.

(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.

(3) Every prisoner shall be allowed to make a request or complaint without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.

(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.

Contact with the outside world

Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.

(1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the state to which they belong.

(2) Prisoners who are nationals of states without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the state which takes charge of their interests or any national or international authority whose task it is to protect such persons.

Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorised or controlled by the administration.

Books

Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.

Religion

(1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.

(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.

(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.

So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination.

Retention of prisoners' property

(1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.

(2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorised to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a receipt for the articles and money returned to him.

(3) Any money or effects received for a prisoner from outside shall be treated in the same way.

(4) If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.

Notification of death, illness, transfer, etc.

(1) Upon the death or serious illness of, or serious injury to a prisoner, or his removal to an institution for the treatment of mental affections, the director shall at once inform the spouse, if the prisoner is married, or the nearest relative and shall in any event inform any other person previously designated by the prisoner.

(2) A prisoner shall be informed at once of the death or serious illness of any near relative. in case of the critical illness of a near relative, the prisoner should be authorised, whenever circumstances allow, to go to his bedside either under escort or alone.

(3) Every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.

Removal of prisoners

(1) When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.

(2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.

(3) The transport of prisoners shall be carried out at the expense of the administration and equal conditions shall obtain for all of them.

Institutional personnel

(1) The prison administration, shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of the institutions depends.

(a) The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

(b) to secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison officers and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.

(2) The personnel shall possess an adequate standard of education and intelligence.

(a) Before entering on duty, the personnel shall be given a course of training in their general and specific duties and be required to pass theoretical and practical tests.

(b) After entering on duty and during their career, the personnel shall maintain and improve their knowledge and professional capacity by attending courses of in-service training to be organised at suitable intervals.

All members of the personnel shall at all times so conduct themselves and perform their duties as to influence the prisoners for good by their example and to command their respect.

(3) So far as possible, the personnel shall include a sufficient number of specialists such as psychiatrists, psychologists, social workers, teachers and trade instructors.

(a) The services of social workers, teachers and trade instructors shall be secured on a permanent basis, without thereby excluding part-time or voluntary workers.

(4) The director of an institution should be adequately qualified for his task by character, administrative ability, suitable training and experience.

(a) He shall devote his entire time to his official duties and shall not be appointed on a part-time basis.

(b) He shall reside on the premises of the institution or in its immediate vicinity.

(c) When two or more institutions are under the authority of one director, he shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these institutions.

(5) The director, his deputy, and the majority of the other personnel of the institution shall be able to speak the language of the greatest number of prisoners, or a language understood by the greatest number of them.

(a) Whenever necessary, the services of an interpreter shall be used.

(6) In institutions which are large enough to require the services of one or more full-time medical officers, at least one of them shall reside on the premises of the institution or in its immediate vicinity.

(a) In other institutions the medical officer shall visit daily and shall reside near enough to be able to attend without delay in cases of urgency.

(7) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.

(a) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.

(b) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.

(8) Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.

(a) Prison officers shall be given special physical training to enable them to restrain aggressive prisoners.

(b) Except in special circumstances, staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been trained in their use.

Inspection

There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.

Part II: Rules applicable to special categories

A. Prisoners under sentence

Guiding principles

The guiding principles hereafter are intended to show the spirit in which penal institutions should be administered and the purposes at which they should aim, in accordance with the declaration made under Preliminary Observation I of the present text.

Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.

To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.

(1) The regime of the institution should seek to minimise any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.

(2) Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organised in the same institution or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.

The treatment of prisoners should emphasise not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the maximum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners.

The medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.

(1) The fulfilment of these principles requires individualisation of treatment and for this purpose a flexible system of classifying prisoners in groups; it is therefore desirable that such groups should be distributed in separate institutions suitable for the treatment of each group.

(2) These institutions need not provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open institutions, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to rehabilitation for carefully selected prisoners.

(3) It is desirable that the number of prisoners in closed institutions should not be so large that the individualisation of treatment is hindered. in some countries it is considered that the population of such institutions should not exceed five hundred. in open institutions the population should be as small as possible.

(4) On the other hand, it is undesirable to maintain prisons which are so small that proper facilities cannot be provided.

The duty of society does not end with a prisoner's release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient after-care directed towards the lessening of prejudice against him and towards his social rehabilitation.

Treatment

The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.

(1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.

(2) For every prisoner with a sentence of suitable length, the director shall receive, as soon as possible after his admission, full reports on all the matters referred to in the foregoing paragraph. Such reports shall always include a report by a medical officer, wherever possible qualified in psychiatry, on the physical and mental condition of the prisoner.

(3) The reports and other relevant documents shall be placed in an individual file. This file shall be kept up-to-date and classified in such a way that it can be consulted by the responsible personnel whenever the need arises.

Classification and individualisation

The purposes of classification shall be:

to separate from others those prisoners who, by reason of their criminal records or bad characters, are likely to exercise a bad influence;

to divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.

So far as possible separate institutions or separate sections of an institution shall be used for the treatment of the different classes of prisoners.

As soon as possible after admission and after a study of the personality of each prisoner with a sentence of suitable length, a programme of treatment shall be prepared for him in the light of the knowledge obtained about his individual needs, his capacities and dispositions.

Privileges

Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of the prisoners in their treatment.

Work

(1) Prison labour must not be of an afflictive nature.

(2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer.

(3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.

(4) So far as possible the work provided shall be such as will maintain or increase the prisoners' ability to earn an honest living after release.

(5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.

(6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.

(7) The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work outside institutions, so as to prepare prisoners for the conditions of normal occupational life.

(a) The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the institution.

(8) Preferably institutional industries and farms should be operated directly by the administration and not by private contractors.

(a) Where prisoners are employed in work not controlled by the administration, they shall always be under the supervision of the institution's personnel. Unless the work is for other departments of the government the full normal wages for such work shall be paid to the administration by the persons to whom the labour is supplied, account being taken of the output of the prisoners.

(9) The precautions laid down to protect the safety and health of free workmen shall be equally observed in institutions.

(a) Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to free workmen.

(10) The maximum daily and weekly working hours of the prisoners shall be fixed by law or by administrative regulation, taking into account local rules or custom in regard to the employment of free workmen.

(a) The hours so fixed shall leave one rest day a week and sufficient time for education and other activities required as part of the treatment and rehabilitation of the prisoners.

(11) There shall be a system of equitable remuneration of the work of prisoners.

(a) Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to send a part of their earnings to their family.

(b) The system should also provide that a part of the earnings should be set aside by the administration so as to constitute a savings fund to be handed over to the prisoner on his release.

Education and recreation

(1) Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterates and young prisoners shall be compulsory and special attention shall be paid to it by the administration.

(2) So far as practicable, the education of prisoners shall be integrated with the educational system of the country so that after their release they may continue their education without difficulty.

Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners.

Social relations and after-care

Special attention shall be paid to the maintenance and improvement of such relations between a prisoner and his family as are desirable in the best interests of both.

From the beginning of a prisoner's sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or establish such relations with persons or agencies outside the institution as may promote the best interests of his family and his own social rehabilitation.

(1) Services and agencies, governmental or otherwise, which assist released prisoners to re-establish themselves in society shall ensure, so far as is possible and necessary, that released prisoners be provided with appropriate documents and identification papers, have suitable homes and work to go to, are suitably and adequately clothed having regard to the climate and season, and have sufficient means to reach their destination and maintain themselves in the period immediately following their release.

(2) The approved representatives of such agencies shall have all necessary access to the institution and to prisoners and shall be taken into consultation as to the future of a prisoner from the beginning of his sentence.

(3) It is desirable that the activities of such agencies shall be centralised or coordinated as far as possible in order to secure the best use of their efforts.

B. Insane and mentally abnormal prisoners

(1) Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible.

(2) Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialised institutions under medical management.

(3) During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer.

(4) The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.

It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric after-care.

C. Prisoners under arrest or awaiting trial

(1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as 'untried prisoners' hereinafter in these rules.

(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.

(1) Untried prisoners shall be kept separate from convicted prisoners.

(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.

Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.

(1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.

(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.

An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.

An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.

An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

for the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. for these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

D. Civil prisoners

In countries where the law permits imprisonment for debt, or by order of a court under any othernon-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment shall be not less favourable than that of untried prisoners, with the reservation, however, that they may possibly be required to work.

E. Persons arrested or detained without charge

Without prejudice to the provisions of article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence.

Appendix 20A: Minute to delegate for approval of expenditure

Minute to Delegate for approval of expenditure on:

medical assistance/repatriation;

repatriation of minor;

funeral expense

in accordance with conditions fset out in Chapter 58: Financial policy: unidentified receipts and repayment of former year administered appropriation.

Appendix 21A: State and territory law societies of Australia

Australian Capital Territory

Law Society of the Australian Capital Territory
GPO Box 1652

(Level 3, 11 London Circuit)
CANBERRA CITY ACT 2601

Tel: 61 2 6247 5700

Fax: 61 2 6247 3754

Internet: http://www.actlawsociety.asn.au/

New South Wales

Law Society of NSW

170 Phillip Street
SYDNEY NSW 2000

Tel: 61 2 9926 0333

Fax: 61 2 9231 5809

Internet: http://www.lawsociety.com.au

Northern Territory

Law Society of the Northern Territory
P.O. Box 2388
(Suite G16, 1st Floor, Paspalis Centrepoint Mall, 48 Smith St)
DARWIN NT 0801

Tel: 61 8 8981 5104

Fax: 61 8 8941 1623

Internet: www.lawsocietynt.asn.au

Queensland

Queensland Law Society Incorporated
GPO Box 1785 (179 Ann Street)
BRISBANE QLD 4001

Tel: 61 7 3842 5842

Fax: 61 7 3842 5999

Internet: www.qls.com.au

South Australia

Law Society of South Australia Incorporated
GPO Box 2066 (124 Waymouth Street)
ADELAIDE SA 5001

Tel: 61 8 8229 0222

Fax: 61 8 8231 1929

Internet: http://www.lawsocietysa.asn.au

Victoria

Law Institute of Victoria
GPO Box 263C (470 Bourke Street)
MELBOURNE VIC 3001

Tel: 61 3 9607 9311

Fax: 61 3 9602 5270

Internet: http://www.liv.asn.au

Tasmania

Law Society of Tasmania 2600
PO Box 1133 (28 Murray Street)
HOBART TAS 7001

Tel: 61 3 6234 4133

Fax: 61 3 6223 8240

Internet: http://www.taslawsociety.asn.au

Western Australia

Law Society of Western Australia
PO Box Z 5345
PERTH WA 6831

(Level 4, St Georges Terrace

Perth. 6000)

Tel: 61 8 9322 7877

Fax: 61 8 9322 7899

Internet: http://www.lawsocietywa.asn.au

Chapter 22 Legal processes

Affidavit : a written statement which is accompanied by the deponent swearing an oath or making an affirmation indicating that the contents of the statement are true.

Apostille: a statement placed on a public document pursuant to the 1969 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents verifying the country of origin of the document, the identity of the signature and seals which appear on the document, and the capacity in which the person signing the document has acted.

Authentication : the process of verifying the signature and/or seal which may appear on a document and making a statement on the document to that effect (sometimes also referred to as 'legalisation'). When a document is authenticated by a series of authorities, the process is referred to as a Chain of Authentication.

Jurat : the clause appearing at the end of an affidavit showing the date, location and name of the person before whom the affidavit was sworn or affirmed.

Oath or affirmation : a confirmation of the truth of a statement which, if made by a person who knows it is false, may subject them to prosecution.

Certification : Confirmation of correctness or authenticity.

Commonwealth: Refers to documents issued by the Commonwealth of Australia.

Declaration: a statement, the truth of which is declared, but not by oath or affirmation.

Deponent : a witness who gives information under oath concerning facts known to them, in a statement to be used in court.

Deposition: a sworn statement of facts to be used in court.

Execute (a document): to bring a legal document into its final legally enforceable form.

Exhibit: an attachment to an affidavit, declaration or other legal document.

Instrument: A written document which records an act or agreement.

Legalisation: another term for 'authentication'.

Notary Public : A person appointed for life by a State or Territory Supreme Court and given statutory powers to witness documents, administer oaths, take depositions and perform other administrative functions. The seal of a notary public authenticates a document. Notaries' seals and signatures are officially recorded in DFAT's Signatures and Seals database.

Public document : A document issued by a Government Authority e.g. birth certificate.

Seal: An inked stamp, or an impression on wax, a wafer or impression in the paper itself, made by an embossing tool. An inked stamp is also called a 'wet' seal, while an impression on a wafer or paper made with an embossing tool is a 'dry' seal. A seal which identifies the relevant authority issuing or servicing a document is called the 'common seal'.

States or territories : Refers to documents issued by the States and Territories of Australia.

Verification: Confirmation of correctness, truth or authenticity.

Witness (verb): to verify the authenticity of a signature or document by signing one's name to it.