ACT government faces possible class action over court orders blunder

Lawyers say detainees serving intensive corrections orders, who were sent to jail for failing to comply with directions from Corrective Services officers without proper powers, could sue the government for wrongful imprisonment under the ACT's Human Rights Act.

The government has rejected suggestions the offenders were unlawfully detained after an "administrative oversight" meant staff supervised orders without the necessary legal authority between last March and November.

It moved to fix the problem in February, sparking strong criticism from lawyers over a lack of consultation, while the Opposition raised concerns it left staff exposed and could lead to "financial problems" if detainees sought compensation.

Intensive corrections orders, or ICOs, were introduced as an alternative to periodic detention last March.

They allow offenders to serve their sentences in the community under strict conditions.

They're ordered by the courts, but administered by Corrective Services officers, who direct offenders to undergo drug and alcohol tests, enter rehabilitation or carry out community service work.

Breaches of those conditions are heard by the Sentence Administration Board, which can then order offenders to spend a short stint in custody.

The legal fix was required after the government found out officers were not delegated the proper powers by the director-general and certain directions given in that eight-month period were outside the scope of their authority.

The amendment was applied retrospectively, limiting the ability of offenders to pursue compensation.

But lawyers from firm Ken Cush and Associates said they would investigate a class action - a legal challenge mounted on behalf of a group - for offenders they believed had been unlawfully detained.

Senior associate Sam Tierney, who has represented several ACT residents for alleged wrongful imprisonment, said residents had a right to be compensated when their liberty was breached unlawfully under the territory's human rights laws.

"Detention which arises when proper legal procedures have not been followed can amount to making a detention unlawful and a right to be compensated is enlivened."

Mr Tierney said the amount of compensation detainees could be entitled to would depend on their individual circumstances.

"The Australian legal system has a strong and proud history of fiercely protecting people's rights against government excesses including attempts by governments to remove people's rights retrospectively.

"This is particularly so where those rights arise from failures on the government's part and directly result in people losing their right to liberty.

"There are strong arguments that the ACT government's latest attempt to retrospectively obliterate people's rights in this case would also not be accepted by the courts."

Government figures showed 29 people were sentenced to ICOs between March 2 and November 11.

Thirteen of those detainees had their order suspended for a breach and were sent to prison for three or seven days.

About 55 Corrective Services staff were affected.

ACT Human Rights Commissioner Helen Watchirs said the retrospective amendment limited the potential for detainees to claim compensation and the restriction on offenders' liberty would likely be considered reasonable under law.

"I'm not sure it would be a strong case. It is possible."

A Justice and Community Safety Directorate spokeswoman said the legal changes were made to "remedy a formal deficiency". She would not be drawn on whether the offenders involved had been informed of the glitch.

"No offender was wrongfully imprisoned and staff operated under implied authority in executing the conditions of which offenders had undertaken in order to serve their custodial sentence in the community.

She said the government had no plans to provide offenders with ex gratia payments - one-off payments made when the government is prepared to compensate a person, but not admit liability - as there was "no proper basis" to do so.

"The Intensive Corrections Orders were suspended by the Sentence Administration Board because offenders failed to comply with the conditions imposed as part of the order."

The ACT Law Society and Bar Association raised concerns the retrospective amendment could have been aimed at heading off possible claims and meant detainees apparently had no redress.

The society previously expressed its view ICO breaches, suspensions and cancellations should be dealt with by the sentencing courts rather than the board, which was a government administrative authority.