Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022
1Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022
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Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022
No. 45 of 2022
Version as at
11 October 2022
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 Meaning of place of detention 4
Part 2—Access by Subcommittee to places of detention 7
5 Relevant Minister to ensure Subcommittee permitted to visit and access a place of detention 7
6 Detaining authority to ensure Subcommittee permitted to visit and access a place of detention 7
7 Responsible Minister may object to Subcommittee visit to a place of detention 7
8 Detaining authority may temporarily prohibit or restrict access to a place of detention 8
9 Subcommittee may interview any person 9
10 Person to be interviewed may request support person 10
11 Interviews to occur in private 10
Part 3—Access by Subcommittee to information 11
12 Subcommittee permitted to access information 11
13 Access to personal information and health information 12
14 Subcommittee may retain, copy or take notes of information 12
Part 4—Protection from reprisal, etc. 13
15 Protection from reprisal 13
16 Other action not affected by finding of guilt 14
Part 5—Miscellaneous 15
Division 1—Nominated officials 15
17 Nomination of person to facilitate Subcommittee visit 15
Division 2—Guidelines 15
18 Responsible Minister may issue guidelines 15
Division 3—Regulations 16
19 Regulations 16
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Endnotes 17
1 General information 17
2 Table of Amendments 18
3 Explanatory details 19
Version No.001
Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022
No. 45 of 2022
Version as at
11 October 2022
The Parliament of Victoria enacts:
Part 1—Preliminary
Section 1 - Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022 - Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022 | Zoe
1 Purposes
The main purposes of this Act are—
(a) 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; and
(b) 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
(c) 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.
2 Commencement
(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into operation before 2 August 2023, it comes into operation on that day.
3 Definitions
In this Act—
Cabinet document means—
(a) a document that is an exempt document under section 28 of the Freedom of Information Act 1982; or
(b) information that if it were in the form of a document would be a document referred to in paragraph (a);
Department Head has the same meaning as in the Public Administration Act 2004;
detainee means a person in a place of detention who is deprived of the person's liberty;
detaining authority, in relation to a place of detention, means the person or entity for the time being in charge of the place of detention;
excluded information means—
(a) any Cabinet document; or
(b) any information that is subject to legal professional privilege or client legal privilege; or
(c) information of a prescribed kind (if any);
expert means an expert selected in accordance with Article 13 of the Optional Protocol;
health information has the same meaning as it has in the Health Records Act 2001;
identifying information means information that identifies an individual or from which an individual can be reasonably identified;
nominated official means a person nominated under section 17;
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 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 section 4;
relevant Minister, in relation to a place of detention, means each Minister responsible for that place of detention;
relevant Secretary, in relation to a place of detention, means the Department Head responsible to the relevant Minister;
Subcommittee means the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
Subcommittee purpose means 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.
4 Meaning of *place of detention*
(1) For the purposes of this Act, each of the following is a place of detention—
(a) a prison within the meaning of the Corrections Act 1986;
(b) 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;
(c) a police gaol within the meaning of the Corrections Act 1986;
(d) 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;
(e) 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;
(f) a remand centre, a youth justice centre or a youth residential centre within the meaning of the Children, Youth and Families Act 2005;
(g) a secure welfare service within the meaning of the Children, Youth and Families Act 2005;
(h) 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;
(i) 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;
(j) a residential treatment facility within the meaning of the Disability Act 2006;
(k) a residential treatment facility within the meaning of the Serious Offenders Act 2018;
(l) 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;
(m) a treatment centre within the meaning of the Severe Substance Dependence Treatment Act 2010;
(n) any place (other than a private residence) at which a person is detained under any of the following—
(i) a public health order made under the Public Health and Wellbeing Act 2008;
(ii) a pandemic order made under the Public Health and Wellbeing Act 2008;
(iii) a direction given in the exercise of a pandemic management power under the Public Health and Wellbeing Act 2008;
(iv) emergency powers within the meaning of the Public Health and Wellbeing Act 2008;
(o) any vehicle primarily used or operated for the purpose of transporting a detainee;
(p) a prescribed place other than a private residence.
(2) For the purposes 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 or quarantine under that order, direction or power (as the case requires).
(3) Despite anything to the contrary in subsection (1), for the purposes of this Act, a place of detention does not include a courtroom.
Part 2—Access by Subcommittee to places of detention
5 Relevant Minister to ensure Subcommittee permitted to visit and access a place of detention
Subject to sections 7 and 8, the relevant Minister for a place of detention must ensure that the Subcommittee and any accompanying experts or interpreters are permitted to—
(a) enter and visit the place of detention; and
(b) have unrestricted access to any part of the place of detention*.*
6 Detaining authority to ensure Subcommittee permitted to visit and access a place of detention
Subject to sections 7 and 8, the detaining authority for a place of detention must ensure that the Subcommittee and any accompanying experts or interpreters are permitted to—
(a) enter and visit the place of detention; and
(b) have unrestricted access to any part of the place of detention.
7 Responsible Minister may object to Subcommittee visit to a place of detention
(1) The responsible Minister may object to the Subcommittee visiting a place of detention on a particular day or particular days if the responsible Minister reasonably believes there is an urgent and compelling reason to temporarily prevent the Subcommittee's visit to that place of detention on that day or those days on any of the following grounds—
(a) national defence;
(b) public safety;
(c) natural disaster;
(d) serious disorder in the place of detention.
(2) If the responsible Minister objects under subsection (1), the 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.
(3) The notice must be given to the Subcommittee before the Subcommittee visits the place of detention.
(4) 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.
8 Detaining authority may temporarily prohibit or restrict access to a place of detention
(1) The detaining authority may 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 the detaining authority reasonably believes allowing access to the place or that part of the place may prevent—
(a) the maintenance of—
(i) security, good order and management of the place of detention; or
(ii) health and safety of any person in the place of detention (including any member of the Subcommittee and any accompanying experts or interpreters); or
(b) the conduct of essential operations by the detaining authority.
(2) Any prohibition or restriction of access to a place of detention or a part of a place of detention under subsection (1) must be only for the shortest period reasonable in the circumstances.
(3) The detaining authority must 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 subsection (1).
9 Subcommittee may interview any person
(1) Subject to subsection (2), the Subcommittee may interview—
(a) any person at a place of detention during a visit to that place of detention; and
(b) any other person who the Subcommittee believes may be able to provide information related to the detention of a detainee, including—
(i) the treatment of a detainee; or
(ii) the conditions of detention to which a detainee is subject.
(2) The Subcommittee must not interview any person unless the person gives consent to the interview.
(3) An interview may be conducted with the assistance of an interpreter.
(4) An interview may be conducted during a visit by the Subcommittee—
(a) in person; or
(b) by means of electronic communication, if the Subcommittee decides to conduct the interview in that manner.
10 Person to be interviewed may request support person
If the Subcommittee agrees, a support person nominated by a person to be interviewed may be present during the interview.
11 Interviews to occur in private
The detaining authority for the place of detention must allow the Subcommittee to interview a person without any other person being present, other than—
(a) an accompanying expert; or
(b) an interpreter; or
(c) a support person nominated under section 10.
Part 3—Access by Subcommittee to information
12 Subcommittee permitted to access information
(1) On receiving a request from the Subcommittee for information for the Subcommittee purpose, the relevant Minister for a place of detention must ensure that the Subcommittee has unrestricted access to all information (other than excluded information) in the possession or under the control of the relevant Minister that is relevant to that purpose.
(2) On receiving a request from the Subcommittee for information for the Subcommittee purpose, the detaining authority for a place of detention must ensure that the Subcommittee has unrestricted access to all information (other than excluded information) in the possession or under the control of the detaining authority that is relevant to that purpose.
(3) For the purposes of this section, information that is relevant to the Subcommittee purpose includes but is not limited to the following—
(a) the number of places of detention;
(b) the location of a place of detention;
(c) the number of detainees in a place of detention;
(d) information relating to the treatment of detainees in a place of detention;
(e) information relating to the conditions of detention applying to detainees in a place of detention.
13 Access to personal information and health information
The Subcommittee must not 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 unless the Subcommittee visits that place of detention or has visited that place of detention.
14 Subcommittee may retain, copy or take notes of information
(1) The Subcommittee may retain, copy or take notes of any information (other than identifying information) to which the Subcommittee is given access under section 12.
(2) Despite subsection (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 if the detainee consents.
Part 4—Protection from reprisal, etc.
15 Protection from reprisal
(1) A person commits an offence if—
(a) the person takes detrimental action against another person; and
(b) the detrimental action is taken wholly or partially because—
(i) the other person has given or disclosed information to the Subcommittee; or
(ii) the person believes the other person has given or disclosed information to the Subcommittee.
Penalty: 120 penalty units or 1 year imprisonment.
(2) In this section—
detrimental action means action causing, comprising or involving any of the following—
(a) injury, damage or loss;
(b) an onerous change to the conditions of a person's detention;
(c) intimidation or harassment;
(d) discrimination, disadvantage or adverse treatment in relation to employment;
(e) dismissal from, or prejudice in, employment;
(f) disciplinary proceedings.
16 Other action not affected by finding of guilt
The finding of a person's guilt by a court for an offence against section 15 does not prevent the taking of any other regulatory or disciplinary action against that person in relation to the conduct which constituted the offence.
Part 5—Miscellaneous
Division 1—Nominated officials
17 Nomination of person to facilitate Subcommittee visit
(1) The relevant Secretary may nominate one or more persons to facilitate a Subcommittee visit to a place of detention.
(2) A nomination under subsection (1) must—
(a) be in writing; and
(b) specify a place of detention; and
(c) specify the period for which the nomination has effect.
(3) For the purposes of facilitating a Subcommittee visit to a place of detention, a nominated official may accompany or assist the Subcommittee during a visit to a place of detention.
(4) A nominated official must not be present during an interview conducted under section 9.
Division 2—Guidelines
18 Responsible Minister may issue guidelines
The responsible Minister, in consultation with any other relevant Minister, may issue guidelines for the purposes of assisting detaining authorities to meet the requirements of this Act.
Division 3—Regulations
19 Regulations
(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
(2) The regulations—
(a) may be of general or limited application; and
(b) may differ according to differences in time, place or circumstances; and
(c) may 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.
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 4 August 2022
Legislative Council: 1 September 2022
The long title for the Bill for this Act was "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."
The Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022 was assented to on 27 September 2022 and came into operation on 11 October 2022: Special Gazette (No. 540) 11 October 2022 page 1.
2 Table of Amendments
There are no amendments made to the Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022 by Acts and subordinate instruments.