Monitoring Of Places Of Detention (Optional Protocol To the Convention Against Torture) Act 2018 (NT)

NORTHERN TERRITORY OF AUSTRALIA

mONITORING OF pLACES OF DETENTION (OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE) ACT 2018

As in force at 1 November 2018

Table of provisions [if supportFields]><span style='mso-element:field-begin'></span><span style='mso-spacerun:yes'>&#160;</span>TOC \o &#34;1-9&#34; <span style='mso-element: field-separator'></span><![endif] — Preliminary matters1 — Short title2 — Commencement3 — Interpretation4 — Meaning of 5 — Act binds the Crown6 — Relationship to other laws7 — Application of Criminal CodePart 2 — Visits by Subcommittee8 — Object of Part9 — Ministerial arrangements10 — Duties of detaining authority and responsible Minister for places of detention11 — Subcommittee's access to places of detention12 — Access to information13 — Subcommittee may interview detainees and other persons14 — Protection against actions etc.15 — Protection against reprisalsPart 3 — Miscellaneous16 — Directions of responsible Minister17 — RegulationsENDNOTES NORTHERN TERRITORY OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA

As in force at 1 November 2018

mONITORING OF pLACES OF DETENTION (OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE) ACT 2018

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 the Territory

Part 1Preliminary matters 1Short title

This Act may be cited as the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018.

2Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

3Interpretation

• (1)

  In this Act:

  deprivation of liberty has the meaning that it has in the Optional Protocol.

  Note for definition deprivation of liberty

  Under Article 4(2) of the Optional Protocol deprivation of liberty means any form of detention or imprisonment or 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 the person’s 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.

  expertmeans 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 9.

  Optional Protocol means 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 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.

4Meaning of

• (1)

  A 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 the Territory.

  Note for subsection (1)

  Under Article 4 of the Optional Protocol the Subcommittee may visit any place under the Territory’s jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence.

• (2)

  Without limiting subsection (1), any of the following places that are subject to the jurisdiction and control of the Territory 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 part of a facility:

    • (i)

      at which health services are provided; and

    • (ii)

      where a person may be held under restraint or in seclusion or isolation;

  • (c)

    a police station or court cell complex;

  • (d)

    a vehicle used or operated to convey detainees.

  Examples for subsection (2)(b)

  • 1

    An isolation area declared under section 17 of the Notifiable Diseases Act 1981.

  • 2

    An approved treatment facility as defined in section 4 of the Mental Health and Related Services Act 1998.

  5Act binds the Crown

  This Act binds the Crown in the right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

6Relationship 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 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.

7Application of Criminal Code

Part IIAA of the Criminal Code applies to an offence against this Act.

Note for section 7

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Part 2Visits by Subcommittee 8Object 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.

9Ministerial 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 the Territory 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;

  • (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;

  • (h)

    the appointment as mentioned in section 10 of persons to assist the Subcommittee.

• (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.

10Duties 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 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.

11Subcommittee's access to places of detention

• (1)

  The detaining authority and responsible Minister 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 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 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 for section 11

  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.

12Access 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 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 the place of detention.

• (3)

  The responsible Minister must, at the request of the Subcommittee, permit the Subcommittee to have unrestricted access to information on:

  • (a)

    the number of places of detention; and

  • (b)

    the location of the places of detention.

• (4)

  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 production of which the responsible Minister or detaining authority 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 the responsible Minister or detaining authority from complying with this section.

• (6)

  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.

13Subcommittee 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.

14Protection against actions etc.

• (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.

15Protection against reprisals

• (1)

  A person commits an offence if:

  • (a)

    the person intentionally takes detrimental action against another person; and

  • (b)

    the detrimental action is taken wholly or partly because the person believes the other person has given or disclosed information to the Subcommittee.

  Maximum penalty:          100 penalty units or imprisonment for 2 years.

• (2)

  A detaining authority who intentionally takes detrimental action against another person that is wholly or partly because the detaining authority believes the other person has given or disclosed information to the Subcommittee is taken to have engaged in conduct that constitutes misconduct in the performance of the person’s 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;

  • (d)

    discrimination, disadvantage or adverse treatment in relation to employment;

  • (e)

    dismissal from, or prejudice in, employment;

  • (f)

    disciplinary proceeding.

  Part 3Miscellaneous    

16Directions of responsible Minister

• (1)

  The responsible Minister for a place of detention may, by written notice, 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.

17Regulations

The Administrator may make regulations under this Act.

  ENDNOTES

• 1

  KEY

Key to abbreviations

 

amd = amended od = order

app = appendix om = omitted

bl = by-law pt = Part

ch = Chapter r = regulation/rule

cl = clause rem = remainder

div = Division renum = renumbered

exp = expires/expired rep = repealed

f = forms s = section

Gaz = Gazette sch = Schedule

hdg = heading sdiv = Subdivision

ins = inserted SL = Subordinate Legislation

lt = long title sub = substituted

nc = not commenced

• 2

  LIST OF LEGISLATION

Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (Act No. 18, 2018)
Assent date	6 September 2018
Commenced	1 November 2018 (Gaz G40, 3 October 2018, p 6)

• 3

  GENERAL AMENDMENTS

General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to: s 4.