1
Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT)
Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
The Monitoring Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022 is a Bill for an Act to facilitate visits to places of detention and access to information by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in accordance with the Subcommittee's mandate under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and for other purposes.
Clause Notes
Part 1—Preliminary
Clause 1 sets out the purposes of the Bill, which are—
• to facilitate visits to places of detention by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for the purposes of the Subcommittee's mandate under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
591160 BILL LA INTRODUCTION 2/8/2022
2
• to provide for the Subcommittee to be given access to information for the purposes of the Subcommittee's functions under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
• to provide for necessary safeguards to enable detaining authorities to preserve privacy, security, good order, welfare and safety in places of detention during visits by the Subcommittee.
The intent of the Bill is to provide that the Subcommittee is permitted to enter and visit and have unrestricted access to any part of Victoria's defined places of detention, and all information which is relevant to fulfil the Subcommittee's purpose. Temporarily preventing access to a place of detention or part of a place of detention requires a reasonable belief that it is required on the grounds specified in the Bill.
Clause 2 sets out the commencement of the Bill, which provides for the Bill to come into operation on a day or days to be proclaimed, or on 2 August 2023 if not proclaimed before that date.
Clause 3 sets out the definition of key words or terms used in the Bill. The following definitions are included in clause 3—
Cabinet document which is defined to mean a document that is an exempt document under section 28 of the Freedom of Information Act 1982 or information that if it were in the form of a document would be a document referred to in section 28 of the Freedom of Information Act 1982.
Department Head which has the same meaning as in the Public Administration Act 2004.
detainee which is defined as a person in a place of detention who is deprived of the person's liberty.
detaining authority which in relation to a place of detention, is defined as the person or entity for the time being in charge of the place of detention.
excluded information which is defined as any Cabinet document, or any information that is subject to legal professional privilege or client legal privilege, or information of a prescribed kind (if any).
3
expert which is defined as an expert selected in accordance with Article 13 of the Optional Protocol.
health information which has the same meaning as it has in the Health Records Act 2001.
identifying information which is defined as information that identifies an individual or from which an individual can be reasonably identified.
nominated official which is defined as a person nominated under clause 17 of this Bill.
Optional Protocol which is defined as the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 18 December 2002 as amended and as in force in Australia from time to time.
personal information has the same meaning as it has in the Privacy and Data Protection Act 2014.
place of detention has the meaning given in clause 4 of this Bill.
relevant Minister, in relation to a place of detention, which is defined as each Minister responsible for that place of detention.
relevant Secretary, in relation to a place of detention, which is defined as the Department Head responsible to the relevant Minister.
Subcommittee which is defined as the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Subcommittee purpose which is defined as the evaluation of any needs and measures that should be adopted to strengthen the protection of detainees against torture and other cruel, inhuman or degrading treatment or punishment.
Clause 4 defines a place of detention for the purposes of the Bill.
Subclause (1) provides that each of the following is a place of detention—
• prison within the meaning of the Corrections Act 1986;
• any place at which a person deemed under section 6A of the Corrections Act 1986 to be in the legal custody of the Secretary is detained;
4
• a police gaol within the meaning of the Corrections Act 1986;
• any place at which a person deemed under section 6D of the Corrections Act 1986 to be in the legal custody of the Chief Commissioner of Police is detained;
• any place (other than a private residence) at which a person is required to reside under an interim supervision order or a supervision order within the meaning of the Serious Offenders Act 2018;
• a remand centre, a youth justice centre or a youth residential centre within the meaning of the Children, Youth and Families Act 2005;
• a secure welfare service within the meaning of the Children, Youth and Families Act 2005;
• any place at which a person deemed to be in the legal custody of a police officer or a protective services officer under the Children, Youth and Families Act 2005 is detained;
• a part of a designated mental health service within the meaning of the Mental Health Act 2014 at which a patient (within the meaning of that Act) is detained;
• a residential treatment facility within the meaning of the Disability Act 2006;
• a residential treatment facility within the meaning of the Serious Offenders Act 2018;
• any part of a residential service within the meaning of the Disability Act 2006 at which a person who is subject to a supervised treatment order (within the meaning of that Act) is required to reside and that is occupied or used by that person;
• a treatment centre within the meaning of the Severe Substance Dependence Treatment Act 2010;
• any place (other than a private residence) at which a person is detained under any of the following—
• a public health order made under the Public Health and Wellbeing Act 2008;
5
• a pandemic order made under the Public Health and Wellbeing Act 2008;
• a direction given in the exercise of a pandemic management power under the Public Health and Wellbeing Act 2008;
• emergency powers within the meaning of the Public Health and Wellbeing Act 2008;
• any vehicle primarily used or operated for the purpose of transporting a detainee;
• a prescribed place other than a private residence.
Subclause (2) provides that for the purpose of subsection (1)(n) a person is not detained under an order, direction or power referred to in that subsection merely because the person is required or directed to isolate under that order, direction or power (as the case requires).
Subclause (2) is intended to provide that the Bill will not apply to individuals who may be residing in temporary accommodation provided by the State for the purpose of quarantine or isolation under the Public Health and Wellbeing Act 2008. For example, as part of the Coronavirus Emergency Response for Children and Young People.
Subclause (2) and clause 4(1)(e) and (p) intend to provide that the Bill does not allow any inspection by the Subcommittee in a private home.
Subclause (3) clarifies that despite anything to the contrary in subclause (1) a place of detention does not include a courtroom.
The intention of subclause (3) is that:
• the Subcommittee may only conduct an inspection in aspects of a court, for example, a court cell which holds a detainee, but not a courtroom.
• a Subcommittee inspection should not delay court processes or hearings.
6
Part 2—Access by Subcommittee to places of detention
Clause 5 provides that subject to clauses 7 and 8 of this Bill, the relevant Minister for a place of detention must ensure that the Subcommittee and any accompanying experts or interpreters are permitted to enter and visit the place of detention and have unrestricted access to any part of the place of detention.
While a detaining authority is to ensure that the Subcommittee can enter a place of detention on the day of a visit, the relevant Minister is also responsible for ensuring that the Subcommittee can enter, visit and have unrestricted access to that place of detention
Clause 6 provides that subject to clauses 7 and 8 of this Bill, the detaining authority for a place of detention must ensure that the Subcommittee and any accompanying experts or interpreters are permitted to enter and visit the place of detention and have unrestricted access to any part of the place of detention.
Clause 7 provides the grounds and manner in which the responsible Minister may object to the Subcommittee's visit.
Subclause (1) provides that the responsible Minister may object to the Subcommittee visiting a place of detention on a particular day or days if they reasonably believe there is an urgent and compelling reason to temporarily prevent the visit to the place of detention on the relevant day(s), on the grounds of national defence, public safety, natural disaster and serious disorder in the place of detention.
Subclause (2) provides that if a responsible Minister objects under subclause (1) the responsible Minister must cause a notice to be given to the Subcommittee specifying the reason for preventing the Subcommittee's visit to the place of detention on the relevant day.
Subclause (3) requires that the notice must be given to the Subcommittee before the Subcommittee visits the place of detention.
Subclause (4) provides that if the notice has been given to the Subcommittee, a relevant Minister and any detaining authority for the place of detention are not required to allow the Subcommittee to enter the place of detention on the day or days specified in the notice.
7
It is not intended that an objection will apply across all places of detention. The Bill permits the responsible Minister to object to a visit of a place of detention. Whilst it does not preclude the responsible Minister from objecting to multiple affected places of detention, the clause is intended to apply to affected places of detention only.
Clause 8 enables the detaining authority to temporarily prohibit or restrict access to a place of detention.
Subclause (1) enables the detaining authority to temporarily prohibit or restrict access to the place of detention or a part of the place of detention by the Subcommittee and any accompanying experts or interpreters, if it reasonably believes allowing access to the place or that part of the place may prevent the—
• maintenance of security, good order and management of the place of detention or the health and safety of any person in the place of detention; or
• conduct of essential operations by the detaining authority.
For the purpose of clause 8(1), relevant examples may include:
• maintaining a detainee's routine or medical care, particularly in a youth, health or disability setting; or
• facilitating mealtimes or people transfer in larger correctional settings; or
• a serious disorder in the place of detention.
Subclause (2) limits the prohibition or restriction of access to a place of detention or a part of a place of detention under subclause (1) to the shortest period reasonable in the circumstances.
The intent of this clause is to support the temporary nature of this power, consistent with the intention of the Bill to permit the Subcommittee to enter and visit and have unrestricted access to any part of Victoria's defined places of detention.
Subclause (3) requires the detaining authority to record in writing the reasons for any temporary prohibition or restriction of access to a place of detention or a part of a place of detention under subclause (1).
8
Clause 9 enables the Subcommittee to interview any person, subject to certain requirements.
Subclause (1) enables the Subcommittee to interview any person at a place of detention during a visit to that place of detention, and any other person who the Subcommittee believes may be able to provide information relating to the detention of a detainee, including the treatment of a detainee or the conditions of detention to which the detainee is subject.
Subclause (2) prevents the Subcommittee from interviewing any person unless the person gives consent to the interview.
Subclause (3) provides that an interview may be conducted with the assistance of an interpreter.
Subclause (4) provides that an interview may be conducted during a visit by the Subcommittee both in person or by means of electronic communication, if the Subcommittee decides to conduct the interview in that manner.
Clause 10 provides that subject to the Subcommittee's agreement, a support person nominated by a person to be interviewed may be present during the interview.
Clause 11 requires that the detaining authority for the place of detention must allow the Subcommittee to interview a person without any other person being present, other than—
• an accompanying expert;
• an interpreter; or
• a support person nominated under clause 10 of this Bill.
Part 3—Access by Subcommittee to information
Clause 12 enables the Subcommittee to access information.
Subclause (1) provides that the relevant Minister for a place of detention must, upon receiving a request from the Subcommittee for information, ensure that the Subcommittee has unrestricted access to all relevant information to the Subcommittee purpose (other than excluded information) in the possession or under the control of the relevant Minister.
9
Subclause (2) provides that the detaining authority for a place of detention must, upon receiving a request from the Subcommittee for information, ensure that the Subcommittee has unrestricted access to all relevant information to the Subcommittee purpose (other than excluded information) in the possession or under the control of the detaining authority.
In relation to information which is in the possession or under the control of a relevant Minister or detaining authority, this is intended to include information gathered through contracted service providers.
Subclause (3) provides that for the purposes of clause 12 of this Bill, information that is relevant to the Subcommittee purpose includes, but is not limited to—
• the number of places of detention;
• the location of a place of detention;
• the number of detainees in a place of detention;
• information relating to the treatment of detainees in a place of detention;
• information relating to the conditions of detention applying to detainees in a place of detention.
Clause 13 provides that the Subcommittee is to be given access under section 12 to identifying information (including personal information and health information) about any person (including a detainee) at a place of detention that the Subcommittee visits or has visited.
Clause 14 permits the Subcommittee to retain, copy or take notes of information.
Subclause (1) enables the Subcommittee to retain, copy or take notes of information of any information (other than identifying information) to which the Subcommittee is given access under section 12.
Subclause (2) provides that despite subclause (1), the Subcommittee may retain, copy or include in any notes taken, identifying information (including personal information and health information) about a detainee in a place of detention with the detainee consents.
10
Part 4—Protection from reprisal, etc.
Clause 15 provides that it is an offence to take detrimental action against another person.
Subclause (1) provides that a person commits an offence if they take detrimental action against another person and the detrimental action is taken wholly or partially because—
• the other person has given or disclosed information to the Subcommittee; or
• the person believes the other person has given or disclosed information to the Subcommittee.
This offence is punishable by 120 penalty units or one year imprisonment.
Subclause (2) defines detrimental action as an action causing, comprising or involving any of the following—
• injury, damage or loss;
• an onerous change to the conditions of a person's detention;
• intimidation or harassment;
• discrimination, disadvantage or adverse treatment in relation to employment;
• dismissal from, or prejudice in, employment;
• disciplinary proceedings.
Clause 16 provides that a finding of guilt by a court for an offence against clause 15 of this Bill, does not prevent any other regulatory or disciplinary action being taken against that person in relation to the conduct which constituted the offence.
Part 5—Miscellaneous
Division 1—Nominated officials
Clause 17 provides the relevant Secretary with the power to nominate officials for the purposes of a Subcommittee visit.
11
Subclause (1) enables the relevant Secretary to nominate one or more persons to facilitate a Subcommittee visit to a place of detention.
Subclause (2) requires that a nomination made under subclause (1) be in writing, specifying a place of detention and the period for which the nomination is to have effect.
Subclause (3) provides that a nominated official may accompany or assist the Subcommittee during a visit to a place of detention.
The intended role of the nominated official is to ensure the Subcommittee is permitted access to a place of detention in accordance with the Bill and relevant information. A nominated official may be an employee of a place of detention or a departmental official familiar with the obligations imposed by the Bill. Whilst it is a function of the nominated official to accompany the Subcommittee, they should not in any way fetter or interfere with a visit. As an alternative, a nominated official may be contactable by telephone to support a detaining authority understand their obligations.
Subclause (4) prevents a nominated official from being present during an interview conducted under clause 9 of this Bill.
Division 2—Guidelines
Clause 18 enables the responsible Minister to issue guidelines for the purposes of assisting detaining authorities to meet the requirements of this Bill, in consultation with any other relevant Minister.
Division 3—Regulations
Clause 19 provides the Governor in Council with the power to make regulations.
Subclause (1) provides that the Governor in Council may make regulations for, or with respect to, any matter or thing required or permitted by this Bill to be prescribed, or that is necessary to be prescribed to give effect to this Bill.
Subclause (2) provides that the regulations may—
• be of general or limited application;
12
• differ according to differences in time, place or circumstances; and
• provide in specified cases or classes of cases for the exemption of persons or things or classes of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.