Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (ACT)

This Act gives statutory force in the Australian Capital Territory to two related monitoring mechanisms arising from the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Mechanically, it does the following.

Establishes an ACT National Preventive Mechanism (NPM) (s 8C). The NPM is comprised of each entity prescribed by regulation (s 8C(2)). The NPM must make and publish guidelines on how it exercises functions (s 8E). The NPM’s object is to fulfil the Optional Protocol part IV mandate (s 8A) and its core functions are set out in s 8D: examining treatment and conditions of detainees, making recommendations and observations to responsible entities, and submitting proposals or observations about legislation relevant to detainees or places of detention (s 8D(a)(i)-(iii)).
Confers powers for the NPM to inspect and examine places of detention and detainees. The NPM may visit a place of detention at any time to conduct an inspection and may notify the detaining authority or publish a schedule of intended visits (s 8J(1)-(3)). The NPM may bring equipment reasonably required for an inspection, for example a camera or recording device (s 8J(4) and examples). On inspection, responsible entities must give the NPM unrestricted access to all parts, vehicles, equipment and documents the NPM reasonably requires (s 8K(2)). The NPM may interview detainees and others privately and detainees have a right to refuse to speak to the NPM (s 8L).
Creates procedures for information and document access. The NPM may require production of information, documents or other things by written notice where it reasonably believes an entity can provide them (s 8M(2)). Entities may also on their own initiative provide material (s 8N). The NPM may take possession of documents or things temporarily, make copies and allow entitled persons access while the NPM holds material (s 8O).

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 A2018-3 Republication No 2 Effective: 18 September 2024 Republication date: 18 September 2024 Last amendment made by A2024-41

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 18 September 2024. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 18 September 2024. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication includes amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 contents 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Contents Page Part 1 Preliminary 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Act—application of Criminal Code etc 3 6 Meaning of detaining authority 3 6A Responsible entities for places of detention 4 7 Meaning of place of detention 4 8 Relationship to other laws 5

Contents Page contents 2 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1A ACT National Preventive Mechanism Division 1A.1 Preliminary 8A Object—pt 1A 6 8B Definitions—pt 1A 6 Division 1A.2 Establishment and functions of NPM 8C ACT National Preventive Mechanism established 7 8D Functions of the NPM 7 8E Functions of the NPM—guidelines 7 8F Independence of NPM 8 8G Arrangements for staff 9 8H Consultants and contractors 9 8I Delegation 9 Division 1A.3 Examination of treatment of detainees in places of detention 8J Inspection of place of detention 9 8K Access to place of detention and things in place of detention 10 8L Access to detainees and other people 11 8M Access to information, documents and other things 12 8N Anyone may provide information, documents and other things 13 8O NPM may keep document or other thing 13 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 14 8Q Treatment of detainees in places of detention—preparation of report 14 8R Treatment of detainees in places of detention—publication etc of final report 16 Division 1A.5 Information secrecy and sharing 8S Secrecy 17 8T Laws preventing etc providing information, documents and other things do not apply 20 8U Referral to investigative entity 20 8V Publishing etc adverse comment 21

Contents Page R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 contents 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 1A.6 Miscellaneous 8W Identification of NPM 21 8X Review—pt 1A 22 Part 2 Visits by subcommittee 9 Object––pt 2 23 10 Ministerial arrangements 23 11 Duties of responsible entities for places of detention 24 12 Subcommittee’s access to places of detention 24 13 Access to information 26 14 Subcommittee may interview detainees and other people 27 Part 3 Miscellaneous 17 Directions of responsible Minister 28 17A Protection against actions etc 28 17B Protection against reprisals 28 17C Protection of officials from liability 30 18 Regulation-making power 31 Dictionary 32 Endnotes 1 About the endnotes 35 2 Abbreviation key 35 3 Legislation history 36 4 Amendment history 36 5 Earlier republications 40

R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory 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 ACT

Part 1 Preliminary Section 1 page 2 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 Preliminary 1 Name of Act This Act is the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018. 3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘place of detention—see section 7.’ means that the term ‘place of detention’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)). 4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Part 1 Section 5 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units. 6 Meaning of detaining authority (1) In this Act: detaining authority, for a place of detention–– (a) means the entity in charge of the place of detention; and (b) includes any entity responsible for the day-to-day care, control, health and safety of detainees in the place of detention. (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

Part 1 Preliminary Section 6A page 4 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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. 7 Meaning of place of detention In this Act: place of detention, means any place that the NPM or subcommittee must be allowed to visit under the Optional Protocol, article 4, that is subject to the jurisdiction and control of the Territory. Note Under the Optional Protocol, art 4, the Territory must allow visits to any place under its jurisdiction and control and in which people are or may be involuntarily deprived of their liberty.

Preliminary Part 1 Section 8 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 8 Relationship to other laws A provision of another territory law that prevents or limits the exercise of any function by the NPM or subcommittee, in relation to a detainee or place of detention under this Act, has no effect to the extent of any inconsistency with this Act.

Part 1A ACT National Preventive Mechanism Division 1A.1 Preliminary Section 8A page 6 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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 Custodial Inspector Act 2017, 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.

ACT National Preventive Mechanism Part 1A Establishment and functions of NPM Division 1A.2 Section 8C R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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.

Part 1A ACT National Preventive Mechanism Division 1A.2 Establishment and functions of NPM Section 8F page 8 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

ACT National Preventive Mechanism Part 1A Examination of treatment of detainees in places of detention Division 1A.3 Section 8G R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Part 1A ACT National Preventive Mechanism Division 1A.3 Examination of treatment of detainees in places of detention Section 8K page 10 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

ACT National Preventive Mechanism Part 1A Examination of treatment of detainees in places of detention Division 1A.3 Section 8L R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Part 1A ACT National Preventive Mechanism Division 1A.3 Examination of treatment of detainees in places of detention Section 8M page 12 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

ACT National Preventive Mechanism Part 1A Examination of treatment of detainees in places of detention Division 1A.3 Section 8N R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Part 1A ACT National Preventive Mechanism Division 1A.4 Recommendations and reporting about treatment of detainees in places of detention Section 8P page 14 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

ACT National Preventive Mechanism Part 1A Recommendations and reporting about treatment of detainees in places of detention Division 1A.4 Section 8Q R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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 Legislation Act, s 48). (6) In this section: non-public sector entity—see the Auditor-General Act 1996, section 13B.

Part 1A ACT National Preventive Mechanism Division 1A.4 Recommendations and reporting about treatment of detainees in places of detention Section 8R page 16 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

ACT National Preventive Mechanism Part 1A Information secrecy and sharing Division 1A.5 Section 8S R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

Part 1A ACT National Preventive Mechanism Division 1A.5 Information secrecy and sharing Section 8S page 18 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

ACT National Preventive Mechanism Part 1A Information secrecy and sharing Division 1A.5 Section 8S R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

Part 1A ACT National Preventive Mechanism Division 1A.5 Information secrecy and sharing Section 8T page 20 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

ACT National Preventive Mechanism Part 1A Miscellaneous Division 1A.6 Section 8V R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Part 1A ACT National Preventive Mechanism Division 1A.6 Miscellaneous Section 8X page 22 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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.

Visits by subcommittee Part 2 Section 9 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 2 Visits by subcommittee 9 Object––pt 2 The object of this part is to enable the subcommittee to fulfil the mandate set out in the Optional Protocol, article 11 (1) (a) so far as it relates to places of detention. 10 Ministerial arrangements (1) The Minister may enter into arrangements (Ministerial arrangements) with the Commonwealth Attorney-General to facilitate the subcommittee’s exercise of its functions in accordance with the Optional Protocol within the ACT under this Act. (2) Without limiting subsection (1), a Ministerial arrangement may be made in relation to the following: (a) the care, direction, control and management of detainees or other people 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 children and other vulnerable people; (g) urgent and compelling risks to public health caused by outbreaks of infectious diseases. (3) A Ministerial arrangement must be consistent with, and reasonably appropriate and adapted for implementing, the Optional Protocol.

Part 2 Visits by subcommittee Section 11 page 24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) A detaining authority has, and may exercise, the functions necessary, under the relevant Ministerial arrangements, to give effect to the Optional Protocol. Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity). (5) The Minister may enter into arrangements with the Commonwealth Attorney-General for the exercise of functions under this Act in relation to places of detention and detainees under the control and jurisdiction of the Commonwealth. 11 Duties of responsible entities for places of detention (1) This section applies if the subcommittee requests access to a place of detention. (2) A responsible entity for the place of detention must ensure that the subcommittee and any accompanying expert or assistant are given access to, and are able to exercise their functions in accordance with the Optional Protocol in, the place of detention. (3) In this section: assistant means a person appointed under the Ministerial arrangements to assist the subcommittee. 12 Subcommittee’s access to places of detention (1) This section applies if the subcommittee requests access to a place of detention. (2) A responsible entity for the place of detention must ensure that the subcommittee and any accompanying expert or assistant are given unrestricted access to every part of the place.

Visits by subcommittee Part 2 Section 12 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) However, if the detaining authority considers that 1 or more grounds mentioned in the Optional Protocol, article 14 (2) may temporarily prevent the carrying out of a visit by the subcommittee, the authority may prohibit or restrict access to the place of detention so that the Commonwealth Attorney-General may, under a Ministerial arrangement, be requested, and decide whether or not, to object to the visit. (4) Also, the authority may prohibit or restrict access to the place of detention if–– (a) an objection to the subcommittee’s visit has been made by the Commonwealth Attorney-General, under the Ministerial arrangements, on 1 or more of the grounds mentioned in the Optional Protocol, article 14 (2); and (b) the objection has not been withdrawn or otherwise resolved by the Commonwealth Attorney-General under the Ministerial arrangements. Note Under the Optional Protocol, art 14 (2) 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. (5) In this section: assistant––see section 11 (3).

Part 2 Visits by subcommittee Section 13 page 26 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 13 Access to information (1) This section applies if the subcommittee requests access to a place of detention. (2) A responsible entity for the place of detention must ensure that the subcommittee and any accompanying expert are given all relevant information that is requested by the subcommittee for evaluating the needs and measures that should be adopted to strengthen, if necessary, the protection of people deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment. (3) A detaining authority for the place of detention must, at the request of the subcommittee and under the Ministerial arrangements, allow the subcommittee to have unrestricted access to the following information in relation to the place: (a) the number of detainees in the place; (b) the treatment of detainees in the place; (c) the conditions of detention applying to detainees in the place. (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. (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.

Visits by subcommittee Part 2 Section 14 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 14 Subcommittee may interview detainees and other people (1) This section applies if the subcommittee requests access to a place of detention. (2) A responsible entity for the place of detention must ensure that the subcommittee and any accompanying expert are given reasonable assistance to interview, without witnesses, either personally or through an interpreter, any detainee or other person at the place who the subcommittee chooses to interview. (3) The responsible Minister for a place of detention must give the subcommittee 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 about the following matters: (a) the place; (b) the treatment of detainees at the place; (c) the conditions of detention. (4) A support person nominated by an interviewee may be present during the interview at the interviewee’s request and with the agreement of the subcommittee. (5) Nothing in this section requires a person who objects or does not consent to being interviewed by the subcommittee to participate in an interview.

Part 3 Miscellaneous Section 17 page 28 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 3 Miscellaneous 17 Directions of responsible Minister (1) The responsible Minister for a place of detention may give directions to a detaining authority for the place of detention for this Act. (2) The detaining authority must comply with any directions given by the responsible Minister under subsection (1). (3) A direction is a notifiable instrument. Note A notifiable instrument must be notified under the Legislation Act. 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

Miscellaneous Part 3 Section 17B R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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;

Part 3 Miscellaneous Section 17C page 30 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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).

Miscellaneous Part 3 Section 18 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 31 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 18 Regulation-making power (1) The Executive may make regulations for this Act. Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act. (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.

Dictionary page 32 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Dictionary (see s 3) Note 1 The Legislation Act contains definitions and other provisions relevant to this Act. Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: • Act • chief police officer • child • Commonwealth • correctional centre • detention place • entity • exercise • function • notifiable instrument (see s 10) • official visitor • penalty unit (see s 133) • person (see s 160) • public notice • territory law • the Territory. Commonwealth Ombudsman, for part 1A (ACT National Preventive Mechanism)—see section 8B. custodial inspector, for part 1A (ACT National Preventive Mechanism)—see section 8B. deprivation of liberty––see the Optional Protocol, article 4 (2). Note Deprivation of liberty is defined in that article as meaning any form of detention, 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.

Dictionary R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 33 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au detainee means a person in a place of detention who is deprived of their liberty. detaining authority, for a place of detention––see section 6. disclose includes communicate or publish. expert means an expert selected in accordance with the Optional Protocol, article 13 (3). 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. Ministerial arrangements––see section 10. NPM means the ACT National Preventive Mechanism established under section 8C. NPM coordinator, for part 1A (ACT National Preventive Mechanism)—see section 8B. 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. Note The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, is accessible at www.ohchr.org. place of detention––see section 7. 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

Dictionary page 34 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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). 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. staff of the NPM, for part 1A (ACT National Preventive Mechanism)—see section 8B. 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 the Optional Protocol, part II.

Endnotes About the endnotes 1 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 35 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired

Endnotes 3 Legislation history page 36 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 A2018-3 notified LR 28 February 2018 s 1, s 2 commenced 28 February 2018 (LA s 75 (1)) remainder commenced 30 April 2018 (s 2 (1) and CN2018-3) as amended by Monitoring of Places of Detention Legislation Amendment Act 2024 A2024-41 pt 3 notified LR 17 September 2024 s 1, s 2 commenced 17 September 2024 (LA s 75 (1)) pt 3 commenced 18 September 2024 (s 2 (1)) 4 Amendment history Commencement s 2 om LA s 89 (4) Meaning of detaining authority s 6 am A2024-41 s 22 Responsible entities for places of detention s 6A ins A2024-41 s 23 Meaning of place of detention s 7 am A2024-41 s 24 Relationship to other laws s 8 am A2024-41 s 25, s 26 ACT National Preventive Mechanism pt 1A hdg ins A2024-41 s 27 Preliminary div 1A.1 hdg ins A2024-41 s 27 Object—pt 1A s 8A ins A2024-41 s 27

Endnotes Amendment history 4 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Definitions—pt 1A s 8B ins A2024-41 s 27 def Commonwealth Ombudsman ins A2024-41 s 27 def custodial inspector ins A2024-41 s 27 def investigative entity ins A2024-41 s 27 def NPM coordinator ins A2024-41 s 27 def staff of the NPM ins A2024-41 s 27 Establishment and functions of NPM div 1A.2 hdg ins A2024-41 s 27 ACT National Preventive Mechanism established s 8C ins A2024-41 s 27 Functions of the NPM s 8D ins A2024-41 s 27 Functions of the NPM—guidelines s 8E ins A2024-41 s 27 Independence of NPM s 8F ins A2024-41 s 27 Arrangements for staff s 8G ins A2024-41 s 27 Consultants and contractors s 8H ins A2024-41 s 27 Delegation s 8I ins A2024-41 s 27 Examination of treatment of detainees in places of detention div 1A.3 hdg ins A2024-41 s 27 Inspection of place of detention s 8J ins A2024-41 s 27 Access to place of detention and things in place of detention s 8K ins A2024-41 s 27 Access to detainees and other people s 8L ins A2024-41 s 27 Access to information, documents and other things s 8M ins A2024-41 s 27 Anyone may provide information, documents and other things s 8N ins A2024-41 s 27 NPM may keep document or other thing s 8O ins A2024-41 s 27

Endnotes 4 Amendment history page 38 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Recommendations and reporting about treatment of detainees in places of detention div 1A.4 hdg ins A2024-41 s 27 Treatment of detainees in places of detention—recommendations and observations s 8P ins A2024-41 s 27 Treatment of detainees in places of detention—preparation of report s 8Q ins A2024-41 s 27 Treatment of detainees in places of detention—publication etc of final report s 8R ins A2024-41 s 27 Information secrecy and sharing div 1A.5 hdg ins A2024-41 s 27 Secrecy s 8S ins A2024-41 s 27 Laws preventing etc providing information, documents and other things do not apply s 8T ins A2024-41 s 27 Referral to investigative entity s 8U ins A2024-41 s 27 Publishing etc adverse comment s 8V ins A2024-41 s 27 Miscellaneous div 1A.6 hdg ins A2024-41 s 27 Identification of NPM s 8W ins A2024-41 s 27 Review—pt 1A s 8X ins A2024-41 s 27 exp 18 September 2029 (s 8X (3)) Duties of responsible entities for places of detention s 11 hdg sub A2024-41 s 28 s 11 am A2024-41 s 29 Subcommittee’s access to places of detention s 12 am A2024-41 s 29 Access to information s 13 am A2024-41 s 29, s 30 Subcommittee may interview detainees and other people s 14 am A2024-41 s 31

Endnotes Amendment history 4 R2 18/09/24 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 page 39 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Protection against actions etc s 15 om A2024-41 s 32 Protection against reprisals s 16 om A2024-41 s 32 Protection against actions etc s 17A ins A2024-41 s 33 Protection against reprisals s 17B ins A2024-41 s 33 Protection of officials from liability s 17C ins A2024-41 s 33 Regulation-making power s 18 am A2024-41 s 34 Dictionary dict am A2024-41 s 35 def ACT privacy law om A2024-41 s 36 def Commonwealth Ombudsman ins A2024-41 s 37 def custodial inspector ins A2024-41 s 37 def disclose ins A2024-41 s 37 def information ins A2024-41 s 37 def investigative entity ins A2024-41 s 37 def NPM ins A2024-41 s 37 def NPM coordinator ins A2024-41 s 37 def produce ins A2024-41 s 37 def responsible director-general ins A2024-41 s 37 def responsible entity ins A2024-41 s 37 def responsible Minister sub A2024-41 s 38 def staff of the NPM ins A2024-41 s 39

Endnotes 5 Earlier republications page 40 Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 Effective: 18/09/24 R2 18/09/24 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No and date Effective Last amendment made by Republication for R1 30 Apr 2018 30 Apr 2018– 17 Sept 2024 not amended new Act © Australian Capital Territory 2024

This Act is structured around a handful of statutory concepts that determine who has duties, what powers are available and how information flows. The key concepts appear in Part 1, the inserted Part 1A and the Dictionary. All references below are to the Act’s sections.

NPM (ACT National Preventive Mechanism), s 8C: the statutory apparatus established to fulfil the Optional Protocol part IV mandate. The NPM is not a single person; it is comprised of each entity prescribed by regulation (s 8C(2)). The NPM must produce guidelines on its procedures (s 8E).
Subcommittee, Dictionary and Part 2: the Optional Protocol’s Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Part 2 (ss 9-14) implements the subcommittee’s ability to visit places of detention within the ACT and regulates access to places, people and records for subcommittee visits (s 9-14).
Place of detention, s 7: any place that the NPM or the subcommittee must be allowed to visit under Optional Protocol article 4 and that is subject to Territory jurisdiction and control. The article 4 reference means the statutory meaning depends on the Optional Protocol’s definition of deprivation of liberty, quoted in the Dictionary and including custodial settings from which a person is not permitted to leave at will.
Detaining authority, s 6: the entity “in charge” of a place of detention, including anyone responsible for day‑to‑day care, control, health and safety of detainees. The definition explicitly treats entities engaged by, or on behalf of, a detaining authority or the Territory to provide services as taken to be detaining authorities (s 6(2)). The Act gives examples such as non‑government organisations contracted to provide education and health service providers (s 6 examples).
Responsible entity, s 6A and Dictionary: each of the responsible Minister for the place, the responsible director‑general and the detaining authority is a responsible entity for a place of detention (s 6A(1)). Where the Act requires something of a responsible entity and the particular responsible entity is not specified, any responsible entity may do it and the responsible Minister must ensure the thing is done if the Minister does not (s 6A(2)).
Protected information and secrecy regime, s 8S: “protected information” is information disclosed to or obtained by the NPM because of its functions. The Act criminalises reckless recording or disclosure of protected information about another person and prohibits publication of protected identifying information, subject to limited exceptions and permitted recipients (s 8S(1)-(5)). Section 8S also prevents compelled disclosure to a court or tribunal (s 8S(6)).
Investigative entity and NPM coordinator, s 8B: investigative entity means an entity with power to compel production of documents or answers, such as the chief police officer or the Ombudsman. NPM coordinator refers to the Commonwealth Ombudsman or another entity on which the national coordination function is conferred (s 8B).
Ministerial arrangements, s 10: arrangements between the ACT Minister and the Commonwealth Attorney‑General for facilitating the subcommittee’s exercise of its Optional Protocol functions in the ACT, covering care, direction and management of detainees, safety and security of places, information access and publication, privacy and vulnerable populations, and public health risks (s 10(2)).
Reporting and consultation: the NPM produces recommendations, draft reports and final reports (s 8P-8R). Before publishing a final report or making an adverse comment, the NPM must offer responsible entities a reasonable opportunity to respond (s 8R(2) and s 8V(1)-(2)). Draft reports may be given to other entities with an interest after that consultation (s 8Q).
Rights of detainees: detainees have particular rights in the process. They may refuse to speak to or be privately interviewed by the NPM or subcommittee (s 8L(2), s 14(5)). A detainee may nominate a support person during interviews (s 8L(4), s 14(4)). Responsible entities must allow the NPM to speak to detainees and provide reasonable assistance (s 8L(3)).

These concepts tie into the Optional Protocol’s text. The Act incorporates procedural requirements, information flow, confidentiality protections, and an explicit hierarchy where the NPM’s functions prevail over inconsistent Territory laws (s 8 and s 8T).

The Act’s definitional and operational provisions place duties and rights on a broad set of public and private actors. Identify who must act and who is protected.

Responsible entities for places of detention (s 6A(1)): the responsible Minister for the place of detention, the responsible director‑general and the detaining authority. Any of these may be required to act where the specific entity is not stated, and the responsible Minister must ensure compliance if the Minister does not act (s 6A(2)). In practical terms this places primary operational responsibility on Ministers, departmental heads and the body operating the detention facility.
Detaining authorities (s 6): includes entities in charge of the place and those responsible for day‑to‑day care, control, health and safety. The definition expressly includes entities engaged by or on behalf of a detaining authority or the Territory to provide services as taken to be detaining authorities (s 6(2)), capturing contracted service providers such as NGOs, health service contractors or separate administrative units.
Detainees (Dictionary: detainee; s 7): people deprived of liberty in places of detention within Territory control. They are the subjects of examinations, and they have enumerated rights to refuse interviews and nominate support persons (s 8L(2), s 8L(4), s 14(4)-(5)).
NPM staff and consultants (s 8B, s 8G-8H): staff of the NPM include public servants seconded or made available under arrangements with the head of service and consultants or contractors engaged under s 8H. These individuals exercise powers of inspection and information collection; they are protected from external direction (s 8F) and bound by secrecy duties with penalties for improper disclosure (s 8S).
The subcommittee and accompanying experts/assistants (Part 2): the Optional Protocol subcommittee and any experts or assistants accompanying it when it requests access to a place of detention. Responsible entities must ensure access to places, people and records for the subcommittee (ss 11-14).
Investigative entities and official visitors (s 8B, s 8U): entities such as the chief police officer, human rights commission, Ombudsman or custodial inspector. The NPM may refer matters to these entities and enter arrangements about referrals (s 8U).
Public sector bodies and private sector bodies holding relevant records: an entity that holds information or documents relevant to an NPM examination may be required by written notice to provide them (s 8M(2)). A provision of another Territory law that would prevent provision of the material has no effect (s 8T(2)).
Ministers and the Commonwealth Attorney‑General (s 10, s 12): the ACT Minister may enter Ministerial arrangements with the Commonwealth Attorney‑General to facilitate subcommittee visits; the Commonwealth Attorney‑General may object to subcommittee visits on urgent and compelling grounds under those arrangements, affecting access to Commonwealth controlled places (s 10(1), s 12(3)-(4)).
Officials exercising functions under the NPM (s 17C): officials are afforded protections from personal liability for acts done honestly and without recklessness in exercising functions under Part 1A; civil liability attaches to the Territory instead (s 17C(1)-(2)).
Individuals providing information: persons who provide or propose to provide information, documents or things to the NPM or subcommittee are protected from civil or criminal liability for doing so (s 17A). They are also protected against detrimental actions (reprisals), with reprisal conduct criminalised where intentional and motivated by the disclosure (s 17B).

Who pays and who decides. The Act does not specify an explicit funding appropriation mechanism for the NPM; operational costs will be borne by the Territory through standard budgetary processes. Decisions about inspection scheduling, composition of the ACT NPM (which entities are prescribed by regulation) and Ministerial arrangements with the Commonwealth are matters for the responsible Minister and the Executive (s 8C(2), s 10, s 18(2) which requires public notice and submissions before prescribing entities).

This section compiles the principal statutory duties on public bodies, detention operators and other entities, and the rights conferred on the NPM, subcommittee and detainees. Citations are included so readers can locate the precise obligations.

Duties imposed on responsible entities and detaining authorities

Give access to NPM inspections: a responsible entity must ensure the NPM is given unrestricted access to all parts of the place of detention, vehicles or equipment used in the place, and to documents or other things in the place of detention reasonably believed necessary for the examination (s 8K(2)). If access is refused it must be on urgent, compelling and temporary grounds only, must be in writing, state reasons and, where practicable, indicate when access will be allowed (s 8K(3)-(5)). A state of emergency is not in itself a reason for refusal (s 8K(4)).
Assist with interviews: a responsible entity must give reasonable assistance to the NPM to speak to or privately interview detainees or other persons and must ensure the NPM can do so at any time (s 8L(3)). The subcommittee has equivalent duties placed on responsible entities for its visits (s 14(2)-(3)). Interviewees have a right to refuse (s 8L(2), s 14(5)) and may have a support person present if requested and agreed (s 8L(4), s 14(4)).
Supply information and documents on notice: where the NPM reasonably believes an entity can provide information or produce documents relevant to an examination, the NPM may require provision by written notice (s 8M(1)-(2)). The Territory must not prevent or obstruct provision even if the examination would, in legal form, be a legal proceeding (s 8M(3)).
Respond to subcommittee requests: Part 2 imposes duties on responsible entities to ensure the subcommittee and any accompanying expert or assistant are given access to places and information requested to evaluate protection of detainees (ss 11-13). Access includes inspection of any record under control of the responsible entity (s 13(4)).

Duties and obligations of the NPM

Make guidelines: the NPM must make guidelines about how it exercises functions and comply with consultation requirements before making guidelines (s 8E(1), (5)). Guidelines must be consistent with implementing the Optional Protocol and be a notifiable instrument published on the NPM website (s 8E(1)-(7)).
Independence: the NPM must act independently and impartially and is not subject to direction in exercising functions (s 8F(1)-(3)). Staff are subject only to authorised internal direction (s 8F(2)).
Consultation and offer to respond before publication: when preparing reports the NPM may provide draft reports to responsible entities and must consider comments (s 8Q(2)-(3)). Before publishing a final report or giving it to the Speaker, the NPM must undertake the consultation steps set out in s 8Q(2)-(3) (s 8R(2)). If an adverse comment is proposed in relation to an entity, the NPM must give the entity reasonable opportunity to respond to the proposed adverse comment (s 8V(1)-(2)).

Rights afforded to detainees, interviewees and information holders

Right to refuse interview: any detainee or person may refuse to speak to or be privately interviewed by the NPM (s 8L(2)); for the subcommittee an interviewee may object or not consent and is not required to participate (s 14(5)).
Confidentiality and support persons: detainees and interviewees may have a support person present with agreement (s 8L(4), s 14(4)). Responsible entities may not, without the interviewee’s approval, read, copy or remove correspondence between an interviewee and the NPM (s 8L(5)).
Protection from liability for disclosure: persons who provide information, produce documents or make disclosures to the subcommittee or the NPM are not subject to civil or criminal liability and no action, claim or demand may be made against them for those acts (s 17A(1)). This operates despite secrecy duties under other laws (s 17A(2)).

Other operational rights and duties

NPM powers to take and hold material: the NPM may take possession of, copy and keep documents or things given under s 8M or s 8N for so long as necessary, but must return them at the end of the period and allow inspection by anyone who would be entitled to inspect the material if it were not held by the NPM (s 8O(1)-(3)).
Subcommittee access subject to Optional Protocol grounds: responsible entities must give the subcommittee unrestricted access but the detaining authority may prohibit or restrict access if it considers the grounds in Optional Protocol article 14(2) apply and requests the Commonwealth Attorney‑General, under Ministerial arrangements, to decide whether to object (s 12(2)-(4)). The Act reproduces the Optional Protocol’s urgent and compelling grounds test (s 12).
Ministerial directions and notifiability: the responsible Minister may give directions to a detaining authority for the Act and such directions are notifiable instruments (s 17(1)-(3)).

These duties and rights create operational obligations on custodial operators and their ministers, while conferring investigative and reporting powers on the NPM and the subcommittee, within the confidentiality constraints the Act imposes.

The Act provides a limited set of criminal offences, disciplinary triggers and statutory protections intended to enforce the confidentiality regime and to deter reprisals, while protecting persons who cooperate with monitoring.

Statutory offences and maximum penalties

Secrecy and unauthorised disclosure offences (s 8S): a person who makes a record of protected information about someone else or discloses protected information about someone else, being reckless as to whether the information is protected or that the disclosure will cause the information to be disclosed, commits an offence. The maximum penalty is 50 penalty units, imprisonment for 6 months or both (s 8S(1)). Publishing protected identifying information is separately prohibited, with the same maximum penalty (s 8S(4)). There are enumerated exceptions, including consent, disclosure under this Act or disclosure to permitted information recipients (s 8S(2)-(3)). Section 8S(6) also prevents compelling a person to disclose protected information to a court or produce documents containing it.
Reprisals offence (s 17B): an entity commits an offence if it intentionally takes detrimental action against someone wholly or partly because the person provided or proposed to provide information, documents or a disclosure to the NPM or the subcommittee, or the entity believes the person did or proposed to do so. Maximum penalty is 110 penalty units, imprisonment for 2 years or both (s 17B(1)).
Other enforcement mechanisms: where a detaining authority engages in conduct that would be an offence under s 17B that authority is taken to have engaged in misconduct in performance of duties, justifying disciplinary action, including under supervising legislation or contracts (s 17B(2)).

Protections from liability

Protection against actions (s 17A): persons who provide information, produce documents or make disclosures to the subcommittee or NPM in the course of their mandates are not subject to civil or criminal liability and no action, claim or demand may be taken against them for doing so. This provision expressly operates despite any duty of secrecy or confidentiality under other enactments (s 17A(2)).
Protection of officials (s 17C): officials, and persons acting under their direction, are not personally liable for acts or omissions done honestly and without recklessness in the exercise of a function under the NPM provisions; any civil liability that would have attached to the official instead attaches to the Territory (s 17C(1)-(2)). This shifts ultimate legal financial consequence from the individual official to the Territory.

Enforcement of information production and inspection

Compulsion by written notice (s 8M(2)): the NPM may require an entity to provide information or produce documents by written notice where it has reasonable grounds to believe the entity can provide them. The Territory may not prevent provision even if the NPM’s examination were a legal proceeding (s 8M(3)).
Referral to investigative entities (s 8U): the NPM may refer matters to investigative entities or official visitors if it reasonably believes the matter is more appropriately dealt with by them. The referral must not include identifying information unless consent or a public interest test is met (s 8U(2)-(3)). The investigatory body is not compelled to act on the referral (s 8U(4)).

Administrative and parliamentary remedies

Publication and tabling (s 8R): the NPM may publish its final reports and provide them to the Speaker for tabling. Tabling triggers parliamentary attention and potential administrative follow‑up, which is an avenue for political accountability.
Disciplinary action (s 17B(2)): where reprisals are committed by detaining authorities, these actions are triggers for disciplinary processes in addition to criminal liability.

Practical enforcement considerations

Penalty unit values are referenced in the front material of the republication; at the republication date the penalty unit values are $160 for an individual and $810 for a corporation (see republication preface). Always check current penalty unit values in the Legislation Act or the Legislation Register for updates.
The Act does not create separate civil enforcement pathways for victims of reprisals beyond the criminal offence and discretion for disciplinary action; it does, however, confer protection from civil liability to whistleblowers and shifts civil liability away from officials. The NPM may also refer matters to investigative entities that have coercive powers.
Many of the Act’s enforcement instruments rely on public disclosure and parliamentary tabling to create incentives for compliance (publication of reports, Parliamentary tabling duties in s 8R). The Act also builds in confidentiality obligations and criminal penalties to protect cooperating individuals.

The Act explicitly configures its relationship with other Territory law, federal arrangements and the Optional Protocol. These interactions determine what legal constraints normally applicable to access and disclosure are displaced, what federal‑state interfaces are engaged, and how the NPM may rely on and refer to investigative powers elsewhere.

Priority over inconsistent Territory laws

Section 8 provides a clear statutory rule: any provision of another Territory law that prevents or limits the exercise of any function by the NPM or subcommittee in relation to a detainee or a place of detention has no effect to the extent of inconsistency with this Act. That is, the Act displaces inconsistent Territory legal constraints on NPM functions.

Displacing confidentiality and secrecy obligations

Section 17A: persons who provide information or documents to the NPM or subcommittee for their mandated functions are protected from civil or criminal liability and the provision operates despite any duty of secrecy or confidentiality under other laws. This is a direct statutory override of confidentiality obligations to facilitate cooperation.
Section 8T complements s 17A: if an entity provides information believing it relevant, a provision of another Territory law that prevents or limits provision of that information has no effect. Section 8M(3) similarly says the Territory must not prevent the provision of information even if the NPM’s examination would otherwise be akin to a legal proceeding.

Limits on court compulsion

Section 8S(6) prevents persons bound by the secrecy requirements in that section from being compelled to disclose protected information to a court or produce documents containing it. The Act, therefore, creates a limited statutory privilege around “protected information” gathered in the NPM’s work.

Federal interactions and Ministerial arrangements

Part 2 implements the Optional Protocol subcommittee’s functions. The ACT Minister may enter Ministerial arrangements with the Commonwealth Attorney‑General to facilitate the subcommittee’s exercise of its functions in the ACT (s 10(1)). That can include arrangements covering management of detainees, safety and security of places, access to and disclosure of information, publication, privacy, vulnerable groups, and public health risks (s 10(2)). These arrangements must be consistent with the Optional Protocol (s 10(3)).
The Act recognises the Commonwealth Attorney‑General’s potential role in objecting to a subcommittee visit where urgent and compelling grounds exist (s 12(3)-(4)), reflecting the Optional Protocol article 14 process. Where the Commonwealth Attorney‑General objects under a Ministerial arrangement the detaining authority may restrict access pending resolution.

References to other statutes and definitions

The Act relies on definitions and cross‑references to the Legislation Act for terms such as notifiable instrument, public notice and penalty units (see notes in the Dictionary and references throughout). Chapter 2 of the Criminal Code applies to offences under this Act (s 5 note). The Act also contemplates the Commonwealth Ombudsman performing the NPM coordinator role (s 8B) and cross‑references existing Territory legislation such as the Custodial Inspector Act 2017 in defining custodial inspector (s 8B).

Interaction with investigative entities

The NPM may refer matters it considers more appropriately dealt with by an investigative entity (for example the Ombudsman, chief police officer or integrity commissioner) and share non‑identifying material by default (s 8U). For identifying information the NPM needs consent or must be satisfied the referral is necessary and reasonable in the public interest (s 8U(3)). The referral power recognises and leverages existing statutory investigative capacities while preserving confidentiality safeguards.

Limits and residual risks

While the Act displaces inconsistent Territory law in a number of ways, it does not displace Commonwealth law. Ministerial arrangements and the role of the Commonwealth Attorney‑General reflect that the Commonwealth retains a role over places under Commonwealth control or where federal interests are engaged (s 10(5), s 12(3)-(4)). Entities should therefore consider federal law and potential Commonwealth rights and obligations when dealing with subcommittee requests.

In sum, the Act creates a legal architecture that prioritises the NPM and subcommittee’s monitoring functions over conflicting Territory constraints, facilitates information sharing within constrained confidentiality rules, coordinates with Commonwealth authorities through Ministerial arrangements, and leverages other investigative bodies where appropriate.

The legislative history recorded in the republication endnotes identifies the original enactment and the 2024 amendment that substantially added Part 1A and other provisions. This section summarises the recorded changes and their effective dates as set out in the document.

Original enactment and commencement

Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (A2018‑3) was notified on 28 February 2018. Sections 1 and 2 commenced 28 February 2018 and the remainder commenced on 30 April 2018 (see Legislation history in endnote 3).

Primary amendment in 2024

Monitoring of Places of Detention Legislation Amendment Act 2024 (A2024‑41) made extensive amendments and additions. The Bill was notified in the Legislation Register on 17 September 2024. Sections 1 and 2 of A2024‑41 commenced 17 September 2024 and Part 3 of that amending Act commenced 18 September 2024 (see endnote 3).

Key inserted and amended elements under A2024‑41

Part 1A hdg and Division headings were inserted (A2024‑41 s 27). Sections 8A through 8X were inserted to create the ACT National Preventive Mechanism part (s 8A-8X ins A2024‑41 s 27). These include establishment of the NPM (s 8C), functions (s 8D), guidelines (s 8E), independence (s 8F), staff arrangements (s 8G), consultants (s 8H), delegation (s 8I), inspection powers (s 8J) and information, secrecy and reporting provisions (s 8K-8R, 8S-8V).
Section 6 (meaning of detaining authority) was amended (A2024‑41 s 22).
New section 6A was inserted to define responsible entities for places of detention (A2024‑41 s 23).
Section 7 (meaning of place of detention), section 8 (relationship to other laws) and other Part 2 provisions were amended (A2024‑41 s 24-31).
Protections and liability provisions were reworked: s 15 and s 16 were omitted and replaced by s 17A (protection against actions), s 17B (protection against reprisals) and s 17C (protection of officials from liability) inserted under A2024‑41 s 33.
Regulation powers were amended (s 18 am A2024‑41 s 34) and the Dictionary updated with multiple new and altered definitions (A2024‑41 s 35-39).

Review and expiry of review obligation

Section 8X requires the Minister to review Part 1A as soon as practicable after the end of its second year of operation and to present a report to the Legislative Assembly within 12 months after the review starts (s 8X(1)-(2)). Section 8X expires 5 years after commencement (s 8X(3)), giving a statutory time limit for that review obligation (endnote amendment history notes expiry 18 September 2029).

Republication and penalty unit values

The republication effective 18 September 2024 includes the amendment history and records the value of penalty units for offences against the law at the republication date: $160 per penalty unit for individuals and $810 per penalty unit for corporations (front matter).

Practical effect of the 2024 amendments

The 2024 amendments materially expanded the Act by creating a detailed NPM regime in Part 1A, imposing new duties on responsible entities, establishing confidentiality offences, clarifying disclosure rules, and setting out protections against reprisals and for officials. The amendments also inserted specific processes to align the Act with the Optional Protocol’s mechanisms for both national mechanisms and the international subcommittee.

Always consult the Legislation Register for the precise amendment text and check whether further amendments or commencing provisions have occurred since the republication date.

The republication and the Act text do not record any litigation about the Act. The document does not name any judicial decisions or reported cases that interpret or apply the Act. The Act does state the Criminal Code, chapter 2 applies to offences under the Act (s 5 note), so prosecutions for the offences created by this Act would proceed within the general criminal framework. For authoritative statements on operation or constitutional interface, practitioners will need to monitor judicial decisions after enforcement actions or litigation are commenced; none are cited in this legislative text.

Practical points about litigation risk and evidentiary interfaces

Offences in the Act are defined with mental element language such as recklessness (s 8S(1) and (1)(b)) and intentional conduct (s 17B(1)), meaning standard Criminal Code principles apply to proof and available defences (s 5 note). Chapter 2 of the Criminal Code specifies general principles of criminal responsibility, burdens of proof and defences.
The Act expressly prevents persons to whom s 8S applies from being compelled to disclose protected information to a court or produce documents containing it (s 8S(6)). That creates a potential evidentiary issue where a court might seek material gathered by the NPM; the Act provides a statutory shield for protected information in many circumstances.
Section 17C shifts civil liability away from officials acting honestly and without recklessness to the Territory (s 17C(1)-(2)). In any civil claim arising from lawful exercise of NPM functions this provision will be directly relevant to questions of attribution and indemnity.
Where the NPM refers matters to investigative entities (s 8U), those entities may have powers to require production of documents and answer questions within their own statutory frameworks. That could produce parallel processes with separate standards of disclosure and compulsion.

Because the legislative record does not show case law, practitioners should treat litigation history as blank and plan for future legal points to arise around secrecy, privilege, the scope of permissible referrals, and interactions with Commonwealth objections under ministerial arrangements.

This Act contains several features that commonly produce operational surprises. The following are concrete pitfalls and practical risks that the text creates, with the statutory provisions referenced.

Contracted service providers can be treated as detaining authorities (s 6(2)). Entities engaged by or on behalf of a detaining authority or the Territory to provide services are “taken to be a detaining authority.” That captures NGOs, contractors and third‑party health providers. Organisations operating under contract must therefore expect to be subject to inspection and data requests under s 8J-8O and to the obligations placed on detaining authorities in Part 2. Contracts should be reviewed to ensure they allocate responsibilities and resourcing for compliance.
“Unrestricted access” is broad but subject to narrow statutory exceptions (s 8K(2)-(3)). Responsible entities must give NPM unrestricted access to every part of a place of detention and to documents the NPM reasonably believes it requires. Access may be refused only on urgent and compelling grounds of national security, public safety, natural disaster or serious disorder (s 8K(3)(a)) and only if the grounds are urgent, compelling and temporary (s 8K(3)(b)). The refusal must be written, state reasons and, where practicable, state when access will be allowed (s 8K(5)). A state of emergency alone is not sufficient (s 8K(4)). Failure to follow the tight procedural refusal requirements risks non‑compliance.
The Act permits the NPM to take possession of documents temporarily (s 8O). The NPM may take possession of or copy documents and retain them for a necessary period, but must allow inspection by those entitled to inspect the material and must return the material at the end of the period (s 8O(1)-(3)). Operationally, custodians should plan for chain of custody, confidentiality obligations, and recordkeeping.
Secrecy offences are criminal and use recklessness and publication standards (s 8S). Staff who access or handle protected information must be trained: reckless recording or disclosure commits an offence (s 8S(1)), and publishing identifying protected information is prohibited (s 8S(4)). There are exceptions but practitioners must map those beforehand. The maximum penalties (50 penalty units and up to 6 months’ imprisonment) are non‑trivial; also check the current penalty unit value.
“Permitted information recipients” are a closed class but includes responsible entities and the subcommittee (s 8S(7) and definitions). Disclosure to a permitted recipient remains regulated: for identifying protected information disclosure is permitted only to permitted recipients and only by the NPM or an NPM staff member and only where the NPM is satisfied the disclosure is necessary and reasonable in the public interest (s 8S(3)(e)). That is a discretionary, fact‑sensitive test.
Reprisal offence and disciplinary consequences (s 17B). Entities, including detaining authorities, may commit a criminal offence if they intentionally take detrimental action because someone provided or proposed to provide information. A detaining authority’s conduct may also be characterised as misconduct justifying disciplinary action (s 17B(2)). Employers must therefore ensure HR and disciplinary systems reflect the statute.
Ministerial directions are not uncommon and are notifiable (s 17). Responsible Ministers may direct detaining authorities and those directions are notifiable instruments, meaning they must be publicly notified under the Legislation Act (s 17(1)-(3)).
Commonwealth interface and potential visit objections (s 10 and s 12). For places under Commonwealth control or where federal interests exist, Ministerial arrangements allow the Commonwealth Attorney‑General to be involved and to object to subcommittee visits on urgent and compelling grounds consistent with the Optional Protocol (s 12(3)-(4)). That creates potential operational complexity where ACT authorities must coordinate with Commonwealth counterparts.
The NPM’s composition is by regulation and requires public notice and submissions (s 8C(2) and s 18(2)). Before the Executive prescribes an entity of the NPM a public consultation process is required by s 18(2). That procedural step could be a point of delay in designating the bodies that will comprise the NPM.
Statutory review is time‑limited (s 8X). The Minister must review the operation of Part 1A after its second year and present a report within 12 months; the requirement expires after five years (s 8X(1)-(3)). If systemic issues arise beyond the review window there is no further statutory trigger.
No explicit funding clause or service standard is included. The Act allows the NPM to arrange staff with the head of service (s 8G) and to engage consultants (s 8H) but does not prescribe resourcing or performance standards. Responsible entities should anticipate budgetary and operational implications.
Interaction with courts and privilege. Section 8S(6) prevents compelled disclosure to a court of protected information. That may lead to litigation over the characterisation of information as “protected” and the limits on judicial compulsion.

These are concrete rule‑based risks and operational constraints. Entities running places of detention and contracted providers should prepare policies, training, contract clauses and logistical plans in light of these statutory mechanics.

This section provides a practical compliance checklist and suggested operational measures tied to the Act’s provisions. It is aimed at responsible Ministers, director‑generals, detaining authorities, contracted service providers, and NPM staff.

Governance and allocation of responsibilities

Map responsibilities among the responsible Minister, responsible director‑general and detaining authority, consistent with s 6A(1) and s 6A(2). Ensure that if a specific responsible entity is not named for a requirement any responsible entity can act and that the responsible Minister has an oversight and assurance mechanism to ensure compliance.
Update contracts with third‑party service providers to reflect that such providers may be treated as detaining authorities under s 6(2). Include clauses that require cooperation with NPM and subcommittee inspections, confidentiality expectations, indemnity and compliance with disciplinary and conduct obligations.

Access readiness and inspection protocols

Establish an inspection protocol that ensures unrestricted access by the NPM to all parts of a place of detention and to documents reasonably required (s 8K(2)). Train staff to allow NPM access and to follow the narrow process for refusing access only on urgent, compelling and temporary grounds, with written reasons and timing information (s 8K(3)-(5)).
Prepare logistics for unannounced and announced visits. Because the NPM may give notice by publishing a schedule (s 8J(3)), keep a process to respond to scheduled inspections and to ensure continuity of detainee care during visits.
Maintain an equipment policy: allow NPM to bring reasonably required equipment (s 8J(4)) and set out procedures for any security or data protection considerations.

Records, information provision and handling sensitive material

Audit records and data holdings likely to be requested under s 8M or s 13, and implement procedures for timely response to written notices requiring information or documents (s 8M(2), s 13(2)-(4)). Where sensitive personal data is involved, ensure processes for assessing consent or public interest under s 8S(3)(e) and for redaction/sanitisation where appropriate.
Establish secure chain of custody protocols for documents that may be temporarily taken by the NPM under s 8O, and procedures for facilitating inspection rights under s 8O(2).
Train staff in the secrecy regime under s 8S. Make it clear who constitutes “a person to whom this section applies” and ensure staff understand that reckless disclosure is an offence and the boundaries for permitted disclosures to permitted recipients (s 8S(1)-(5)).

Interview processes and detainee rights

Implement procedures to facilitate private interviews by the NPM and subcommittee (s 8L(1)-(4), s 14(2)-(4)). Ensure detainees know they may refuse to be interviewed and that a support person may be present if requested and agreed (s 8L(2), s 8L(4), s 14(4)-(5)).
Ensure that staff do not, without interviewee approval, read, copy or remove correspondence between detainees and the NPM (s 8L(5)).

Reporting, responding to draft reports and adverse comments

Create an internal process to receive draft reports from the NPM and produce considered comments within any reasonable period offered (s 8Q(2)-(3)). Document responses and improvement plans where recommendations are made (s 8P(1)).
For proposed adverse comments, ensure the entity has mechanisms to prepare a reasoned response when given a reasonable opportunity under s 8V(1)-(2). Consider follow‑up implementation plans for recommendations and ensure evidence of steps taken is recorded.

Reprisals, whistleblower protection and staff training

Update disciplinary and HR policies to reflect the reprisal offence (s 17B). Make staff aware that intentional detrimental action against persons for providing or proposing to provide information is criminal and also grounds for disciplinary action (s 17B(1)-(2)).
Publicise and operationalise the protection under s 17A for persons who provide information to the NPM or subcommittee, so potential disclosers understand they are protected from civil and criminal liability for cooperating.

Coordination with Commonwealth and Ministerial arrangements

If any place or function is subject to Commonwealth control or presents a federal interest, engage with the ACT Minister to ensure Ministerial arrangements with the Commonwealth Attorney‑General are in place consistent with s 10. Prepare for contingencies where the Commonwealth Attorney‑General may object to a subcommittee visit on urgent and compelling grounds (s 12(3)-(4)).

NPM composition, guidelines and public consultation obligations

If prescribing entities for the NPM under s 8C(2) by regulation, comply with the public notice and submissions obligations in s 18(2). If you are the body tasked with preparing guidelines, consult the listed director‑generals and the chief police officer and publish the guidelines as a notifiable instrument on the NPM website (s 8E(5)-(7)).

Legal oversight and documentation

Ensure legal counsel reviews notices to produce information and any decisions to refuse access under s 8K to ensure the statutory requirements are met and the grounds are urgent, compelling and temporary.
Keep a register of all NPM and subcommittee visits, notices received and responses given, documents produced, any temporary seizures under s 8O and any referrals made under s 8U. That register will assist in accountability and in complying with parliamentary reporting obligations if required.

Practical templates and training

Develop standard forms and templates: notice of inspection cooperation; template for responding to an NPM written notice under s 8M; standard written refusal template complying with s 8K(5); indemnity and confidentiality clauses for contracted service providers; a staff training module addressing secrecy obligations and reprisal law.
Run periodic exercises simulating NPM visits to test logistical readiness, information retrieval and staff behaviour under the secrecy rules and detainee interview rights.

Following these measures will reduce compliance risk, shorten response times to NPM and subcommittee requests, and align day‑to‑day custodial operations with the Act’s requirements. Regular legal reviews should be scheduled to keep procedures aligned with any subsequent statutory or regulatory changes and to respond to any interpretive guidance from relevant oversight bodies.

Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018

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Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018

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How it interacts with other laws

Amendment history

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