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This is a Bill, not an Act. For current law, see the Acts databases.
2024
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Contents
Page
Part 1.1Auditor-General Act 199637
2024
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Monitoring of Places of Detention Legislation Amendment Bill 2024
A Bill for
An Act to amend legislation about monitoring of places
of detention to establish the ACT national preventive mechanism, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Monitoring of Places of Detention Legislation Amendment Act 2024
.
(1) This Act (other than section 4) commences on the day after its notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) Section 4 commences on this Act’s notification day.
This Act amends the
and the
.
Note This Act also amends other legislation (see sch 1).
4 New Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Regulation—sch 2
(1) The provisions set out in schedule 2 are taken to be a regulation made
under the
, section 18.
(2) The regulation—
(a) is taken to be notified under the Legislation Act
on the day this Act is notified; and
(b) commences on the commencement of schedule 2; and
(c) is not required to be presented to the Legislative Assembly under the Legislation Act
, section 64 (1); and
(d) may be amended or repealed as if it had been made under the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018
, section 18.
(3) This Act is taken to be an amending law for the Legislation Act
, section 89 (Automatic repeal of certain laws and provisions) despite this
section not being a provision mentioned in section 89 (12), definition of
amending law.
Part 2 Inspector of Correctional Services Act 2017
substitute
An Act to provide for a custodial inspector, and for other purposes
substitute
1 Name of Act
This Act is the
.
substitute
Part 2 Custodial inspector
substitute
9 Appointment of custodial inspector
substitute
(1) The Executive must appoint a person as the custodial inspector.
Note For laws about appointments, see the Legislation Act
, pt 19.3.
after
this Act
insert
or any other territory law
11 Functions—generally
Section
17 (2)
omit
12 Functions—examination and
review
Section 18 (1) (b)
substitute
(b) may, but not more than once every 2 years, examine and review correctional services on the inspector’s own initiative; and
omit
14 Offence—taking detrimental
action
Section 26 (4)
substitute
(4) In this section:
detrimental action includes the following:
(a) discriminating against a person by treating, or proposing to treat, the person unfavourably, including in relation to—
(i) the person’s reputation; or
(ii) the person’s career, profession, employment or trade; or
(iii) the person’s access to a correctional centre or a detainee; or
(iv) if the person is a detainee—
(A) the detainee’s living conditions; or
(B) the detainee’s privileges; or
(C) the surveillance or searches the detainee is subject to; or
(D) where the detainee is held in a correctional centre;
(b) treating, or proposing to treat, a relevant organisation unfavourably, including in relation to—
(i) the funding the organisation receives; or
(ii) the organisation’s access to a correctional centre or detainee; or
(iii) the conditions on the organisation’s service delivery in relation to a correctional centre or detainee;
(c) harassing or intimidating a person;
(d) injuring a person;
(e) damaging a person’s property;
(f) treating, or proposing to treat, a person unfavourably in any other way.
living conditions of a detainee, means, as relevant to the detainee, living conditions mentioned in—
(a) the
, chapter 6 (Living conditions at correctional centres); or
(b) the
, part 6.5 (Living conditions at detention places).
privilege of a detainee, means, as relevant to the detainee, a privilege mentioned in—
(a) the
, section 154; or
(b) the
, section 289.
relevant organisation means a body that has as 1 of its activities—
(a) promoting the interests of detainees; or
(b) delivering services to detainees.
substitute
27 Report about examination and review
(1) The inspector must prepare a report after conducting the following:
(a) an examination and review of a correctional centre under section 18 (1) (a);
(b) an examination and review of correctional services under section 18 (1) (b);
(c) a review of a critical incident under section 18 (1) (c).
(2) Any recommendations included in a report must further the objects of this Act.
Note The main object of this Act is to promote the continuous improvement of correctional centres and correctional services (see s 6).
16 Draft report to relevant Minister
and director-general
Section 29 (1) and (2)
substitute
(1) Before presenting a report prepared under section 27 to the Legislative Assembly, the inspector must give the relevant Minister and relevant director-general a reasonable opportunity to comment on a draft report.
(1A) For subsection (1), a reasonable opportunity to comment is a period that is either—
(a) 6 weeks; or
(b) another period as agreed between the inspector, relevant Minister and relevant director-general.
(2) The relevant Minister and relevant director-general may provide comments in relation to the draft report to the inspector within the period mentioned in subsection (1A).
substitute
30 Presentation of report to Legislative Assembly
(1) The inspector must give the Speaker a report prepared under section 27—
(a) for an examination and review of a correctional centre conducted under section 18 (1) (a) or of correctional services conducted under section 18 (1) (b)—within 6 months of completing the examination and review; and
(b) for a review of a critical incident conducted under section 18 (1) (c)—at a time the inspector considers appropriate having regard to the circumstances of the critical incident.
(2) The relevant Minister may extend the period mentioned in subsection (1) (a) by an additional period of not more than 12 months.
(3) If the Legislative Assembly is sitting when the inspector gives a report to the Speaker, the Speaker must present the report to the Legislative Assembly within 5 sitting days after receiving the report.
(4) If the Legislative Assembly is not sitting when the inspector gives the report to the Speaker—
(a) the report is taken to have been presented to the Legislative Assembly on the day the inspector gives it to the Speaker (the report day); and
(b) the Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the report day; and
(c) the Speaker must present the report to the Legislative Assembly—
(i) on the next sitting day; or
(ii) if the next sitting day is the first meeting of the Legislative Assembly after a general election of members of the Assembly—on the second sitting day after the election.
(5) In this section:
Speaker includes—
(a) if the Speaker is unavailable—the Deputy Speaker; and
(b) if both the Speaker and Deputy Speaker are unavailable—the clerk of the Legislative Assembly.
unavailable—the Speaker or Deputy Speaker is unavailable if—
(a) they are absent from duty; or
(b) there is a vacancy in the office of Speaker or Deputy Speaker.
insert
• body
omit
• person (see s 169)
substitute
• person (see s 160)
20 Dictionary, new definition of critical incident
insert
critical incident means any event in a correctional centre or in the provision of correctional services that involves any of the following:
(a) the death of a person;
(b) a person’s life being endangered;
(c) an escape from custody;
(d) a person being taken hostage;
(e) a riot that results in significant disruption to a centre or service;
(f) a fire that results in significant property damage;
(g) an assault or use of force that results in a person being admitted to a hospital;
(h) any other incident identified as a critical incident by a relevant Minister or relevant director-general.
21 Dictionary, definition of inspector
omit
inspector of correctional services
substitute
custodial inspector
Part 3 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018
22 Meaning of detaining
authority
Section 6 (2)
substitute
(2) For this Act, an entity engaged by, or on behalf of, a detaining authority or the Territory to provide services to detainees in a place of detention as, or on behalf of, a detaining authority or the Territory is taken to be a detaining authority.
Examples
1 a non-government organisation contracted to provide education services on behalf of the detaining authority
2 the provision of health services to detainees at a place of detention by a different administrative unit to the one that is responsible for the place of detention
insert
6A Responsible entities for places of detention
(1) In this Act:
responsible entity, for a place of detention—each of the following is a responsible entity for a place of detention:
(a) the responsible Minister for the place of detention;
(b) the responsible director-general for the place of detention;
(c) the detaining authority for the place of detention.
(2) If a responsible entity is required to do a thing under this Act in relation to a place of detention and the particular responsible entity is not stated for the requirement—
(a) any responsible entity for the place of detention may do the thing; and
(b) if the responsible Minister for the place of detention does not do the thing—the responsible Minister must ensure the thing is done.
24 Meaning of place of
detention
Section 7
before
subcommittee
insert
NPM or
25 Relationship to other
laws
Section 8
omit
(other than an ACT privacy law)
before
subcommittee
insert
NPM or
insert
Part 1A ACT National Preventive Mechanism
Division 1A.1 Preliminary
8A Object—pt 1A
The object of this part is to enable the NPM to be established and maintained to fulfil the mandate set out in the Optional Protocol, part IV.
8B Definitions—pt 1A
In this part:
Commonwealth Ombudsman means the person appointed under the Ombudsman Act 1976
(Cwlth), section 21.
custodial inspector means the custodial inspector appointed
under the
, section 9.
investigative entity means an entity with power to require the production of documents or the answering of questions including, for example, the chief police officer, the human rights commission, the ombudsman, the custodial inspector and the integrity commissioner.
NPM coordinator means the Commonwealth Ombudsman or another entity on which the function of the National Preventive Mechanism Coordinator is conferred from time to time.
Note See the Ombudsman Regulations 2017
(Cwlth), s 17 (1).
staff of the NPM means—
(a) any public servant or person mentioned in section 8G; and
(b) any consultants and contractors engaged under section 8H.
Division 1A.2 Establishment and functions of NPM
8C ACT National Preventive Mechanism established
(1) The ACT National Preventive Mechanism is established.
(2) The NPM is comprised of each entity prescribed by regulation.
8D Functions of the NPM
The NPM has the following functions:
(a) to improve the treatment and conditions of detainees in places of detention, and to strengthen the protection of detainees against torture and other cruel, inhuman or degrading treatment or punishment, by doing the following:
(i) examining the treatment of detainees in places of detention;
(ii) making recommendations and observations to responsible entities for places of detention;
(iii) submitting proposals and observations concerning existing or draft legislation that relates to detainees or places of detention;
(b) any other function given to the NPM under this Act or another territory law.
8E Functions of the NPM—guidelines
(1) The NPM must make guidelines about the way in which it exercises its functions.
(2) The guidelines must be consistent with, and reasonably appropriate and adapted for implementing, the Optional Protocol.
(3) The guidelines must provide for procedures of the NPM, including—
(a) how the NPM identifies matters that require particular care or sensitivity when carrying out an examination of the treatment of detainees in places of detention or in a particular place of detention; and
(b) how the NPM works with the NPM coordinator, the subcommittee and investigative entities; and
(c) anything else prescribed by regulation.
(4) The guidelines may include any other procedures of the NPM, including how the NPM works with responsible entities for places of detention to improve the treatment and conditions of detainees in places of detention.
(5) Before making the guidelines, the NPM must—
(a) consult with the responsible directors-general for each place of detention and the chief police officer; and
(b) consider any recommendations or advice received during the consultation undertaken under paragraph (a).
(6) The guidelines are a notifiable instrument.
(7) The guidelines must be made available on the NPM’s website.
8F Independence of NPM
(1) The NPM is not subject to the direction of anyone else in relation to the exercise of a function under this Act.
(2) Staff of the NPM, in relation to the exercise of a function under this Act, are not subject to the direction of anyone except—
(a) the NPM; or
(b) another member of staff of the NPM who is authorised by the NPM to give the direction.
(3) No-one may require the NPM or staff of the NPM to act other than independently and impartially in the exercise of a function under this Act.
8G Arrangements for staff
The NPM may arrange with the head of service to use the services of the following:
(a) a public servant;
(b) a person prescribed by regulation.
8H Consultants and contractors
(1) The NPM may engage consultants and contractors.
(2) However, the NPM must not enter into a contract of employment under this section.
8I Delegation
The NPM may delegate a function under this Act to a member of staff of the NPM.
Note For laws about delegations, see the Legislation Act
, pt 19.4.
Division 1A.3 Examination of treatment of detainees in places of detention
8J Inspection of place of detention
(1) In examining the treatment of detainees in a place of detention, the NPM may, at any time, visit a place of detention to inspect the place of detention.
(2) The NPM may, but need not, give the detaining authority for the place of detention notice of a visit.
(3) The NPM may give notice of a visit by making a schedule of the dates on which it intends to visit a place of detention publicly available.
(4) The NPM may, in visiting a place of detention, take into the place any equipment reasonably required to effectively carry out an inspection of the place.
Examples—equipment reasonably required
1 a recording device
2 a camera
8K Access to place of detention and things in place of detention
(1) This section applies if the NPM visits a place of detention to inspect the place of detention.
(2) A responsible entity for a place of detention must ensure that the NPM is given unrestricted access to the following:
(a) all parts of the place of detention;
(b) any vehicle or equipment used in the place of detention;
(c) all documents or other things in the place of detention that the NPM reasonably believes it requires access to in examining the treatment of detainees in the place.
(3) However, a responsible entity for the place of detention may refuse access by the NPM to all or part of a place of detention—
(a) on 1 or more of the following grounds:
(i) national security;
(ii) a risk to public safety;
(iii) a natural disaster;
(iv) a serious disorder in the place of detention; and
(b) only if the circumstances of the grounds mentioned in paragraph (a)—
(i) are urgent and compelling; and
(ii) temporarily prevent access by the NPM.
(4) The existence of a state of emergency is not in itself a reason for a refusal under subsection (3).
(5) A refusal under subsection (3) must—
(a) be made in writing; and
(b) include a statement of reasons for the refusal; and
(c) if practicable and reasonable, set out when the access will be allowed.
(6) In this section:
state of emergency means—
(a) a state of emergency declared under the Emergencies Act 2004
, section 156; or
(b) an emergency declared under the Public Health Act 1997
, section 119.
8L Access to detainees and other people
(1) In examining the treatment of detainees in a place of detention, the NPM may, either personally or through an interpreter, speak to, or privately interview, any detainee or other person in the place.
(2) However, a detainee or other person has a right to refuse to speak to, or be privately interviewed by, the NPM.
(3) A responsible entity for the place of detention must ensure that the NPM is—
(a) given reasonable assistance to speak to, or privately interview, a detainee or other person; and
(b) able to speak to, or privately interview, a detainee or other person at any time.
(4) A support person nominated by a detainee or other person may be present during the interview at their request and with the agreement of the NPM.
(5) No responsible entity may, without the approval of the detainee or other person, read, copy or remove any correspondence—
(a) from a detainee or other person to the NPM; or
(b) from the NPM to the detainee or other person.
(6) In this section:
privately interview means speaking with a person without the presence of any other person and without audio surveillance by electronic or other means.
8M Access to information, documents and other things
(1) This section applies if the NPM believes on reasonable grounds that an entity can provide information or produce a document or something else relevant to its examination of the treatment of detainees in a place of detention.
Examples—information relevant to examination of the treatment of detainees
1 the number of detainees in a place of detention
2 the conditions of detention applying to detainees
3 the number or location of places of detention
(2) The NPM may, by written notice given to the entity, require the entity to provide the information or produce the document or other thing.
(3) The Territory must not prevent or obstruct the provision of the information or the production of the document or other thing under this section, even if the Territory would be entitled to do so if the examination were a legal proceeding.
8N Anyone may provide information, documents and other things
An entity that has information, a document or something else it believes is relevant to the NPM’s examination of the treatment of detainees in a place of detention may provide or produce it to the NPM on its own initiative at any time.
Examples—entity
1 a responsible entity
2 an investigative entity
3 the subcommittee
4 the NPM coordinator
5 an entity that exercises a function under a law of a State, corresponding or substantially corresponding to a function of the NPM
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
8O NPM may keep document or other thing
(1) If a document or something else is given to the NPM under section 8M or section 8N, the NPM may, for a period that is necessary for the NPM’s consideration to which the document or thing relates—
(a) take possession of, make copies of, or take extracts from, the document or take possession of the thing; and
(b) keep the document or thing.
(2) During the period mentioned in subsection (1), the NPM must allow anyone who would be entitled to inspect the document or thing, if it were not in the possession of the NPM, to inspect it and, for a document, make copies of, or take extracts from, it.
(3) At the end of the period mentioned in subsection (1), the NPM must return a document or thing.
Division 1A.4 Recommendations and reporting about treatment of detainees in places of detention
8P Treatment of detainees in places of detention—recommendations and observations
Following an examination of the treatment of detainees in a place of detention under division 1A.3, the NPM may make a recommendation or observation—
(a) to any entity the NPM considers appropriate to respond to the recommendation or observation made; and
(b) in a way the NPM considers appropriate.
8Q Treatment of detainees in places of detention—preparation of report
(1) Following an examination of the treatment of detainees in a place of detention under division 1A.3, the NPM may prepare a report about the following:
(a) the examination;
(b) any recommendation or observation made under section 8P in relation to the examination;
(c) any steps that have been or are proposed to be taken in relation to the recommendation or observation made under section 8P.
(2) The NPM may give a copy of the draft report to any responsible entity for the place of detention.
(3) If the NPM gives a copy of the draft report to a responsible entity, the NPM—
(a) may invite the entity to give comments on the copy of the draft report within a reasonable period; and
(b) must consider any comments given by the entity under paragraph (a).
(4) The NPM may also give a copy of the draft report or a copy of part of the draft report to any other entity the NPM is satisfied has a direct interest in the draft report.
(5) However, if the NPM gives a copy of the draft report or a copy of part of the draft report to an entity that is a non-public sector entity under subsection (4), the NPM must first do the things mentioned in subsections (2) and (3) with—
(a) each responsible entity mentioned in the report; and
(b) each responsible entity that is, or is likely to be, directly affected by the report; and
(c) any other responsible entity prescribed by regulation.
Note Power to make a regulation includes power to make different
provision in relation to different matters or different classes of matters, and
to make a regulation that applies differently by reference to stated exceptions
or factors (see
, s 48).
(6) In this section:
non-public sector entity—see the Auditor-General Act 1996
, section 13B.
8R Treatment of detainees in places of detention—publication etc of final report
(1) The NPM may do the following with a report prepared under section 8Q:
(a) give the report to a responsible entity for the place of detention mentioned in the report;
(b) publish the report;
(c) give the report to the Speaker to table in the Legislative Assembly;
(d) give the report to any other entity.
(2) However, before the NPM does a thing mentioned in subsection (1) (b), (c) or (d), the NPM must do the things mentioned in section 8Q (2) and (3) with—
(a) each responsible entity mentioned in the report; and
(b) each responsible entity that is, or is likely to be, directly affected by the report; and
(c) any other responsible entity prescribed by regulation.
Note If the report contains an adverse comment in relation to an entity the NPM must also give the entity a reasonable opportunity to respond to the proposed comment (see s 8V).
(3) If the Legislative Assembly is sitting when the NPM gives a report to the Speaker, the Speaker must present the report to the Legislative Assembly within 5 sitting days after receiving the report.
(4) If the Legislative Assembly is not sitting when the NPM gives the report to the Speaker—
(a) the report is taken to have been presented to the Legislative Assembly on the day the NPM gives it to the Speaker (the report day); and
(b) the Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the report day; and
(c) the Speaker must present the report to the Legislative Assembly—
(i) on the next sitting day; or
(ii) if the next sitting day is the first meeting of the Legislative Assembly after a general election of members of the Assembly—on the second sitting day after the election.
(5) In this section:
Speaker includes—
(a) if the Speaker is unavailable—the Deputy Speaker; and
(b) if both the Speaker and Deputy Speaker are unavailable—the clerk of the Legislative Assembly.
unavailable—the Speaker or Deputy Speaker is unavailable if—
(a) they are absent from duty; or
(b) there is a vacancy in the office of Speaker or Deputy Speaker.
Division 1A.5 Information secrecy and sharing
8S Secrecy
(1) A person to whom this section applies commits an offence if—
(a) the person—
(i) makes a record of protected information about someone else; and
(ii) is reckless about whether the information is protected information about someone else; or
(b) the person—
(i) does something that discloses protected information about someone else; and
(ii) is reckless about whether—
(A) the information is protected information about someone else; and
(B) doing the thing would result in the information being disclosed to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) Subsection (1) (a) does not apply if the record of protected information about the person is made—
(a) with the person’s consent; or
(b) under this Act or another territory law; or
(c) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.
(3) Subsection (1) (b) does not apply if the protected information about the person is disclosed—
(a) with the person’s consent; or
(b) under this Act or another territory law; or
(c) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law; or
(d) for protected information that is information other than identifying information—to a permitted information recipient; or
(e) for protected information that is identifying information—
(i) to a permitted information recipient; and
(ii) by the NPM or a member of staff of the NPM; and
(iii) in circumstances where the NPM is satisfied the disclosure is necessary and reasonable in the public interest.
(4) A person to whom this section applies must not publish protected information about a person that is identifying information about the person.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5) Subsection (4) does not apply if the protected information about the person is published with the person’s consent.
(6) A person to whom this section applies must not be compelled to disclose protected information to a court or produce a document containing protected information to a court.
(7) In this section:
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
identifying information, about a person, means information that—
(a) identifies the person; or
(b) allows the person’s identity to be worked out.
permitted information recipient means—
(a) a responsible entity; or
(b) the subcommittee; or
(c) the NPM coordinator; or
(d) an entity that exercises a function under a law of a State, corresponding or substantially corresponding to a function of the NPM.
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
person to whom this section applies means a person who exercises, or has exercised, a function under this Act.
protected information means information about a person that is disclosed to, or obtained by, the NPM because of the exercise of a function by the NPM or a member of staff of the NPM under this Act.
8T Laws preventing etc providing information, documents and other things do not apply
(1) This section applies if an entity provides information or produces a document or something else to the NPM because they believe it is relevant to the exercise of the NPM’s functions.
(2) A provision of another territory law that prevents or limits the provision of the information or the production of the document or thing has no effect.
8U Referral to investigative entity
(1) This section applies if the NPM reasonably believes that a matter raised by, or in the course of, the exercise of its functions can be more appropriately dealt with by another investigative entity or an official visitor.
(2) The NPM may decide to refer the matter together with any relevant documents, information or other things in the NPM’s possession or control, to an investigative entity or an official visitor.
(3) However, the referral must not include identifying information about an individual unless—
(a) the individual has given consent; or
(b) the NPM is satisfied that referring the matter is necessary and reasonable in the public interest.
(4) Nothing in this section requires the investigative entity or official visitor to deal with the referred matter.
(5) The NPM may enter into arrangements with an investigative entity or an official visitor about the referral of matters under this section.
(6) In this section:
identifying information—see section 8S (7).
matter includes part of a matter.
8V Publishing etc adverse comment
(1) The NPM must not publish an adverse comment in relation to an entity, unless the NPM has given the entity a reasonable opportunity to respond, orally or in writing, to the proposed comment.
(2) The NPM must also not do a thing mentioned in section 8R (1) (Treatment of detainees in places of detention—publication etc of final report) in relation to a report that contains an adverse comment in relation to an entity, unless the NPM has given the entity a reasonable opportunity to respond, orally or in writing, to the proposed comment.
Division 1A.6 Miscellaneous
8W Identification of NPM
In exercising a function under this Act in relation to a person, the NPM must, as far as it is practicable and reasonable, make it clear to the person that the function is being exercised by the NPM under this Act.
8X Review—pt 1A
(1) The Minister must review the operation of this part as soon as practicable after the end of its 2nd year of operation.
(2) The Minister must present a report of the review to the Legislative Assembly within 12 months after the day the review is started.
(3) This section expires 5 years after the day it commences.
substitute
11 Duties of responsible entities for places of detention
omit
The responsible Minister and detaining authority
substitute
A responsible entity
substitute
(4) Access to which the subcommittee is entitled under this section includes the right to inspect any record that is under the control of a responsible entity for the place of detention, or whose production the responsible entity may, in an official capacity, reasonably require.
(5) A provision of any Act or other law that restricts or denies access to records does not prevent a responsible entity from complying with this section.
31 Subcommittee may interview detainees
and other people
Section 14 (2)
omit
The responsible Minister and detaining authority
substitute
A responsible entity
omit
insert
17A Protection against actions etc
(1) A person is not subject to any civil or criminal liability and no action, claim or demand may be taken or made of or against the person, for providing information, producing a document or thing or making a disclosure to—
(a) the subcommittee in the course of, and for the purposes of, the subcommittee performing its mandate under the Optional Protocol, article 11; or
(b) the NPM in the course of, and for the purposes of, the NPM performing its mandate under the Optional Protocol, part IV.
(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.
17B Protection against reprisals
(1) An entity commits an offence if––
(a) the entity intentionally takes detrimental action against someone; and
(b) the detrimental action is taken wholly or partially because––
(i) the person provided information, produced a document or thing or made a disclosure to the NPM or the subcommittee; or
(ii) the person proposed to provide information, produce a document or thing or make a disclosure to the NPM or the subcommittee; or
(iii) the entity believes the person has done a thing mentioned in paragraphs (i) or (ii).
Maximum penalty: 110 penalty units, imprisonment for 2 years or both.
(2) A detaining authority who engages in conduct that would be an offence under subsection (1) is taken to have engaged in conduct that constitutes misconduct in the performance of the detaining authority’s duties and that justifies the taking of disciplinary action against the detaining authority, including disciplinary action provided for––
(a) under an Act that regulates the employment or service of the detaining authority; or
(b) under a contract of employment or contract for services that governs the employment or engagement of the detaining authority.
(3) 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) change to the treatment of a detainee;
(d) intimidation or harassment;
(e) discrimination, disadvantage or adverse treatment, including in relation to employment;
(f) dismissal from, or prejudice in, employment;
(g) disciplinary proceeding;
(h) unfavourable treatment or proposed unfavourable treatment of a person or relevant organisation in any other way.
relevant organisation means a body that has as 1 of its activities—
(a) promoting the interests of detainees; or
(b) delivering services to detainees.
17C Protection of officials from liability
(1) An official, or anyone engaging in conduct under the direction of an official, is not personally liable for anything done or omitted to be done honestly and without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a function under this Act.
(2) Any civil liability that would, apart from subsection (1), attach to an official attaches instead to the Territory.
(3) In this section:
official means a person who exercises a function under part 1A (ACT National Preventive Mechanism).
34 Regulation-making
power
New section 18 (2)
insert
(2) Before a regulation may be made to prescribe an entity of the NPM under section 8C (2)—
(a) the Minister must give public notice of the proposed regulation and invite public submissions about it; and
(b) the Executive must consider any written submissions received in accordance with the public notice.
insert
• chief police officer
• official visitor
• public notice
36 Dictionary, definition of ACT privacy law
omit
37 Dictionary, new definitions
insert
Commonwealth Ombudsman, for part 1A (ACT National Preventive Mechanism)—see section 8B.
custodial inspector, for part 1A (ACT National Preventive Mechanism)—see section 8B.
disclose includes communicate or publish.
information means information, whether true or not, in any form and includes an opinion and advice.
investigative entity, for part 1A (ACT National Preventive Mechanism)—see section 8B.
NPM means the ACT National Preventive Mechanism established under section 8C.
NPM coordinator, for part 1A (ACT National Preventive Mechanism)—see section 8B.
produce includes allow access to.
responsible director-general, for a place of detention, means—
(a) the director-general responsible for administering an Act, or part of an Act, conferring functions on, or regulating the exercise of functions by, a detaining authority for the place; or
(b) if no Act confers functions on, or regulates the exercise of functions by, a detaining authority for the place—the director-general prescribed by regulation for the place; or
(c) in any other case—the director-general responsible for administering this Act.
responsible entity, for a place of detention—see section 6A (1).
38 Dictionary, definition of responsible Minister
substitute
responsible Minister, for a place of detention, means—
(a) the Minister administering an Act, or part of an Act, conferring functions on, or regulating the exercise of functions by, a detaining authority for the place; or
(b) if no Act confers functions on, or regulates the exercise of functions by, a detaining authority for the place—the Minister prescribed by regulation for the place; or
(c) in any other case—the Minister responsible for administering this Act.
39 Dictionary, new definition of staff of the NPM
insert
staff of the NPM, for part 1A (ACT National Preventive Mechanism)—see section 8B.
Schedule 1 Consequential amendments
(see s 3)
Part 1.1 Auditor-General Act 1996
substitute
Note The auditor-general must consult with the custodial inspector in relation to the exercise of a function under pars (a) to (d) involving a detainee or correctional centre or service (see Custodial Inspector Act 2017
, s 33).
Part 1.2 Children and Young People Act 2008
[1.2] Section 137, definition of accredited person, paragraph (e) and section 144 (2) (b) (iv)
omit
inspector of correctional services
substitute
custodial inspector
substitute
Note 1 The custodial inspector may also enter and inspect a detention
place (see
, s 19).
[1.4] Section 154 (5), definition of inspection law, examples
insert
•
[1.5] Section 154 (5), definition of inspection law, examples, 4th dot point
omit
omit
inspector of correctional services
substitute
custodial inspector
in
• section 179 (c)
• section 195 (5) (d)
• section 200 (5), definition of protected electronic communication, paragraph (c)
• section 201 (4), definition of protected mail, paragraph (c)
• section 222 (3) (d)
• section 280 (5), definition of protected mail, paragraph (c)
• section 576, definition of accredited person, paragraph (e)
• section 634 (1) (d)
[1.7] Dictionary, new definition of custodial inspector
insert
custodial inspector means the custodial inspector appointed
under the
, section 9.
[1.8] Dictionary, definition of inspector of correctional services
omit
Part 1.3 Corrections Management Act 2007
[1.9] Section 15 (2) (b) (iv) etc
omit
inspector of correctional services
substitute
custodial inspector
in
• section 15 (2) (b) (iv)
• section 31A (2) (d) (ii)
• section 33A (2) (d) (ii)
• section 51 (c)
substitute
Note The custodial inspector may also enter and inspect a correctional
centre (see
, s 19).
[1.11] Section 62 (5), definition of inspection law, examples
insert
•
[1.12] Section 62 (5), definition of inspection law, examples, 4th dot point
omit
omit
inspector of correctional services
substitute
custodial inspector
in
• section 66 (1) (d)
• section 103 (5), definition of protected electronic communication, paragraph (c)
• section 142 (3)
• dictionary, definition of accredited person, paragraph (d)
[1.14] Dictionary, new definition of custodial inspector
insert
custodial inspector means the custodial inspector appointed
under the
, section 9.
[1.15] Dictionary, definition of inspector of correctional services
omit
[1.16] Dictionary, definition of protected mail, paragraph (c)
omit
inspector of correctional services
substitute
custodial inspector
Part 1.4 Freedom of Information Act 2016
[1.17] Schedule 1, section 1.15
substitute
1.15 Information in possession of custodial inspector
Information in the possession of the custodial inspector appointed under the
, section 9 that has been obtained or generated in relation to an examination or review conducted under that Act
, section 18.
1.16 Information in the possession of the ACT national preventive mechanism
Information in the possession of the ACT National Preventive Mechanism
established under the
, section 8C that has been obtained or generated in relation to an examination of the treatment of detainees in places of detention under that Act
, division 1A.3.
Part 1.5 Human Rights Commission Act 2005
substitute
Note 2 The commission—
(a) must consult with the custodial inspector in relation to any
commission-initiated consideration involving a detainee or correctional centre
or service (see
, s 33); and
(b) may refer a matter to the inspector if the commission reasonably
believes the matter can be more appropriately dealt with by the inspector (see
, s 34).
[1.19] Section 5 (1) (b), note
substitute
Note The ombudsman—
(a) must consult with the custodial inspector in relation to any
investigation under par (b) involving a detainee or correctional centre or
service (see
, s 33); and
(b) may refer a matter to the inspector if the ombudsman reasonably believes the matter can be more appropriately dealt with by the inspector (see Custodial Inspector Act 2017
, s 34).
Part 1.7 Remuneration Tribunal Act 1995
[1.20] Schedule 1, part 1.2, new dot point
insert
• custodial inspector
omit
• inspector of correctional services
Schedule 2 New Monitoring of Places of
Detention (Optional Protocol to the Convention Against Torture)
Regulation
(see s 4)
Australian Capital Territory
Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Regulation 2024
Subordinate Law SL2024-
made under the
1 Name of regulation
This regulation is the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Regulation 2024.
2 NPM entities—Act, s 8C (2)
The NPM is comprised of—
(a) the custodial inspector; and
(b) the human rights commission; and
(c) the ombudsman.
3 Functions of the NPM—guidelines—Act, s 8E (3) (c)
The guidelines must provide for how the entities that comprise the NPM work together to efficiently and effectively exercise functions as the NPM.
4 Arrangements for staff—Act, s 8G
(1) This section applies if the Commonwealth Ombudsman is the ombudsman.
(2) A person who is a member of the ombudsman staff under the Ombudsman Act 1989
, section 30 (2) (b) is prescribed.
Note The person must be appointed or employed under the Public Service Act 1999
(Cwlth).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 16 May 2024.
2 Notification
Notified under the
on 2024.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2024
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