Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018
1Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018
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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).
Section 1 - Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 - Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 | Zoe
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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(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
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(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
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(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
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(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
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(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
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(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
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(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
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(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
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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
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(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
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(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
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(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
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(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
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(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
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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
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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
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(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
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(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
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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
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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
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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
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(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
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(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
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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
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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
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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
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(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
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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
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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
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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
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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