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TASMANIA
__________
MONITORING OF PLACES OF DETENTION
(OPTIONAL PROTOCOL TO THE CONVENTION
AGAINST TORTURE) BILL 2013
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Places of detention
5. Act binds Crown
6. Relationship to other laws
PART 2 - VISITS BY SUBCOMMITTEE
7. Object of Part
8. Ministerial arrangements
9. Duties of detaining authority and responsible Minister for places
of detention
10. Subcommittee's access to places of detention
11. Access to information
12. Subcommittee may interview detainees and other persons
13. Protection against actions, &c.
14. Protection against reprisals
[Bill 43]-I
PART 3 - MISCELLANEOUS
15. Directions of responsible Minister
16. Regulations
17. Administration of Act
2
MONITORING OF PLACES OF DETENTION
(OPTIONAL PROTOCOL TO THE CONVENTION
AGAINST TORTURE) BILL 2013
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to enable the Optional Protocol to the Convention
against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment to be given effect within
Tasmania
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Monitoring of
Places of Detention (Optional Protocol to the
Convention Against Torture) Act 2013.
2. Commencement
This Act commences on a day to be proclaimed.
3. Definitions
(1) In this Act -
[Bill 43] 3
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deprivation of liberty has the meaning that it
has in the Optional Protocol;
Note: Under Article 4(2) of the Optional Protocol deprivation of
liberty means any form of detention or imprisonment or the
placement of a person in a public or private custodial setting
which the person is not permitted to leave at will by order of
any judicial, administrative or other authority.
detainee means a person in a place of
detention who is deprived of his or her
liberty;
detaining authority for a place of detention
means the person or entity for the time
being in charge of the place of detention
and includes any person or entity
responsible for the day-to-day care,
control, health and safety of detainees in
that place of detention;
entity includes an unincorporated body;
expert means an expert selected in accordance
with Article 13 of the Optional Protocol;
function includes a power, authority or duty,
and exercise a function includes perform
a duty;
Ministerial arrangement means an
arrangement entered into under section 8;
Optional Protocol means the Optional
Protocol to the Convention Against
Torture and Other Cruel, Inhuman or
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Part 1 - Preliminary s. 4
Degrading Treatment or Punishment,
adopted by the General Assembly of the
United Nations on 18 December 2002, as
amended and in force for Australia from
time to time;
place of detention - see section 4;
responsible Minister for a place of detention
means the Minister administering the
Act, or portion of an Act, conferring
functions on, or regulating the exercise of
functions by, detaining authorities for
that place of detention;
Subcommittee means the Subcommittee on
Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment of the Committee against
Torture, established in accordance with
Part II of the Optional Protocol.
(2) For the purposes of this Act, an entity or person
engaged by or on behalf of a detaining authority
or the State to provide services under a contract
as, or on behalf of, a detaining authority is taken
to be a detaining authority.
(3) A note in the text of this Act does not form part
of this Act.
4. Places of detention
(1) In this Act -
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s. 5 Part 1 - Preliminary
place of detention means any place that the
Subcommittee must be allowed to visit
under Article 4 of the Optional Protocol
that is subject to the jurisdiction and
control of Tasmania.
(2) Without limiting subsection (1), any of the
following places that are subject to the
jurisdiction and control of Tasmania and in
which persons are involuntarily deprived of their
liberty are places of detention for the purposes
of this Act -
(a) a correctional centre, prison, detention
centre or other similar place (however
described);
(b) a hospital or other similar place;
(c) a police station or court cell complex;
(d) a vehicle used or operated to convey
detainees.
5. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
6. Relationship to other laws
A provision of any other Act or statutory
instrument of this jurisdiction that prevents, or
limits, the exercise of any function by the
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Convention Against Torture) Act 2013
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Part 1 - Preliminary s. 6
Subcommittee with respect to a detainee or place
of detention in accordance with this Act has no
effect or operation to the extent of any
inconsistency with this Act.
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Act No. of
s. 7 Part 2 - Visits by Subcommittee
PART 2 - VISITS BY SUBCOMMITTEE
7. Object of Part
The object of this Part is to enable the
Subcommittee to fulfil the mandate set out in
Article 11(a) of the Optional Protocol so far as it
relates to places of detention.
8. Ministerial arrangements
(1) The Minister administering this Act may enter
into arrangements with the Attorney-General of
the Commonwealth for the purpose of
facilitating the exercise by the Subcommittee of
its functions under and in accordance with the
Optional Protocol within Tasmania under the
provisions of this Act.
(2) Without limiting subsection (1), such Ministerial
arrangements may be made for or with respect to
the following:
(a) the care, direction, control and
management of detainees and other
persons within places of detention;
(b) the safety and security of places of
detention;
(c) access to, and disclosure of, information;
(d) publication of information;
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Part 2 - Visits by Subcommittee s. 9
(e) the privacy of individuals or their rights
to the confidentiality of personal
information about them;
(f) the special needs of juveniles and other
vulnerable persons;
(g) urgent and compelling risks to public
health caused by outbreaks of infectious
diseases.
(3) Ministerial arrangements made under this
section must be consistent with, and reasonably
appropriate and adapted for the purpose of
implementing, the Optional Protocol.
(4) A detaining authority has, and may exercise,
such functions as are necessary, under the
relevant Ministerial arrangements, to give effect
to the Optional Protocol.
(5) The Minister administering this Act may enter
into arrangements with the Attorney-General of
the Commonwealth for the exercise of functions
under this Act with respect to places of detention
and detainees under the control and jurisdiction
of the Commonwealth.
9. Duties of detaining authority and responsible
Minister for places of detention
The detaining authority and responsible Minister
for a place of detention to which the
Subcommittee requests access must ensure that
the Subcommittee, any accompanying experts
9
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s. 10 Part 2 - Visits by Subcommittee
and any persons appointed under Ministerial
arrangements to assist the Subcommittee are
given access to, and are able to exercise their
functions under and in accordance with the
Optional Protocol in, the place of detention.
10. Subcommittee's access to places of detention
(1) The responsible Minister and detaining authority
for a place of detention to which the
Subcommittee requests access must ensure that
the Subcommittee, any experts accompanying
the Subcommittee and any persons appointed
under Ministerial arrangements to assist the
Subcommittee are given unrestricted access to
every part of that place, except as provided by
subsections (2) and (3).
(2) If the detaining authority for a place of detention
considers that one or more grounds specified in
Article 14(2) of the Optional Protocol may
temporarily prevent the carrying out of a visit by
the Subcommittee, the detaining authority may
prohibit or restrict access to the place of
detention so that the Attorney-General of the
Commonwealth may, in accordance with
Ministerial arrangements, be requested to object,
and decide whether or not to object, to the visit.
(3) A detaining authority may prohibit or restrict
access to the place of detention -
(a) if an objection to the Subcommittee's
visit has been made by the Attorney-
General of the Commonwealth, in
10
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Part 2 - Visits by Subcommittee s. 11
accordance with Ministerial
arrangements, on one or more of the
grounds specified in Article 14(2) of the
Optional Protocol; and
(b) the objection has not been withdrawn or
otherwise resolved by the Attorney-
General of the Commonwealth in
accordance with Ministerial
arrangements.
Note Under Article 14(2) of the Protocol, an objection to a visit to a
particular place of detention may be made only on urgent and
compelling grounds of national defence, public safety, natural
disaster or serious disorder in the place to be visited.
11. Access to information
(1) The responsible Minister and detaining authority
for a place of detention to which the
Subcommittee requests access must ensure that
the Subcommittee and any accompanying
experts are provided with all relevant
information that is requested by the
Subcommittee for the purpose of evaluating the
needs and measures that should be adopted to
strengthen, if necessary, the protection of
persons deprived of their liberty against torture
and other cruel, inhuman or degrading treatment
or punishment.
(2) A detaining authority for a place of detention
must, at the request of the Subcommittee and in
accordance with Ministerial arrangements,
permit the Subcommittee to have unrestricted
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s. 11 Part 2 - Visits by Subcommittee
access to the following information in relation to
the place of detention:
(a) the number of detainees in the place of
detention;
(b) the treatment of detainees at the place of
detention;
(c) the conditions of detention applying to
detainees in that place of detention.
(3) Access to which the Subcommittee is entitled
under this section includes the right to inspect
any record that is under the control of the
responsible Minister or a detaining authority, or
whose production the responsible Minister or
detaining authority may, in an official capacity,
reasonably require.
(4) A provision of any Act or other law that restricts
or denies access to records does not prevent the
responsible Minister or detaining authority from
complying with this section.
(5) However, this section does not entitle the
Subcommittee to access any record held by any
of the following persons (protected
professionals):
(a) a registered health professional, within
the meaning of the Health Practitioner
Regulation National Law (Tasmania) Act
2010, concerning a private health service
provided to a person who is or was a
detainee;
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Part 2 - Visits by Subcommittee s. 12
(b) an Australian lawyer, within the meaning
of the Legal Profession Act 2007, or
other lawyer concerning legal advice
given to a client who is or was a
detainee;
(c) any other person who acted in a
professional capacity with a person who
is or was a detainee and who was under
an express or implied obligation arising
under law not to disclose any information
or confidence arising out of that
relationship.
(6) A protected professional is not subject to any
civil or criminal liability if the Subcommittee is
given access under this section to any record of a
kind referred to in subsection (5) by the
responsible Minister or a detaining authority and
no action, claim or demand may be taken or
made of or against the protected professional
with respect to disclosure of any information
contained in the record.
(7) In this section -
record means any document or other source of
information compiled, recorded or stored
in written form or on film, or by
electronic process, or in any other
manner or by any other means.
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s. 12 Part 2 - Visits by Subcommittee
12. Subcommittee may interview detainees and other
persons
(1) The responsible Minister and detaining authority
for a place of detention to which the
Subcommittee requests access must ensure that
the Subcommittee and any accompanying
experts are provided with all reasonable
assistance to interview, without witnesses, either
personally or through an interpreter, any
detainee the Subcommittee chooses to interview
and any other person at the place of detention
who the Subcommittee chooses to interview.
(2) It is the duty of the responsible Minister for a
place of detention to provide the Subcommittee
with all reasonable assistance to interview,
without witnesses, either personally or through
an interpreter, any person who the Subcommittee
believes may be able to give it relevant
information concerning the place of detention,
the treatment of detainees at it or the conditions
of their detention.
(3) Nothing in subsection (1) prevents a support
person chosen by a person the Subcommittee
wishes to interview from being present during
the interview at that person's request and with
the agreement of the Subcommittee.
(4) Nothing in this section requires a person who
objects to, or who does not consent to, being
interviewed by the Subcommittee to participate
in an interview.
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Part 2 - Visits by Subcommittee s. 13
13. Protection against actions, &c.
(1) A person is not subject to any civil or criminal
liability for giving any information or making
any disclosure to the Subcommittee in the course
of, and for the purposes of, the Subcommittee
performing its mandate under Article 11 of the
Optional Protocol and no action, claim or
demand may be taken or made of or against the
person for giving the information or making the
disclosure.
(2) This section has effect despite any duty of
secrecy or confidentiality or any other restriction
on the giving or disclosure of information
(whether or not imposed by or under an Act)
applicable to the person.
14. Protection against reprisals
(1) A person who intentionally takes detrimental
action against another person that is wholly or
partially in reprisal for the other person giving or
disclosing information to the Subcommittee is
guilty of an offence.
Penalty: Fine not exceeding 85 penalty units or
imprisonment for a term not exceeding
2 years, or both.
(2) A detaining authority who intentionally takes
detrimental action against another person that is
wholly or partially in reprisal for the other
person giving or disclosing information to the
Subcommittee is taken to have engaged in
15
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Act No. of
s. 14 Part 2 - Visits by Subcommittee
conduct that constitutes misconduct in the
performance of his or her duties as a detaining
authority and that justifies the taking of
disciplinary action against the detaining
authority, including disciplinary action provided
for -
(a) by or under an Act that regulates the
employment or service of the detaining
authority; or
(b) by or under a contract of employment or
contract for services that governs the
employment or engagement of the
detaining authority.
(3) This section extends to a case where a person
takes detrimental action against another person
even if the other person did not in fact give or
disclose information to the Subcommittee.
(4) In this section -
detrimental action means action causing,
comprising or involving any of the
following:
(a) injury, damage or loss;
(b) change of the conditions of
detention;
(c) intimidation or harassment;
16
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Act No. of
Part 2 - Visits by Subcommittee s. 14
(d) discrimination, disadvantage or
adverse treatment in relation to
employment;
(e) dismissal from, or prejudice in,
employment;
(f) disciplinary proceeding.
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Act No. of
s. 15 Part 3 - Miscellaneous
PART 3 - MISCELLANEOUS
15. Directions of responsible Minister
(1) The responsible Minister for a place of detention
may, by notice in writing, issue directions to any
detaining authority for the place of detention for
the purposes of this Act.
(2) The detaining authority must comply with any
directions given by the responsible Minister
under this section.
16. Regulations
The Governor may make regulations for the
purposes of this Act.
17. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
18 Government Printer, Tasmania