This Act creates a Tasmanian national preventive mechanism to implement the Optional Protocol in Tasmania. It equips an independent monitor to inspect any place where people are deprived of liberty, access information, interview detainees, make recommendations and publish reports.
It requires detaining authorities and Ministers to grant access, allows ministerial arrangements with the Commonwealth, sets confidentiality and disclosure rules, creates offences and penalties, and provides staff, delegation and protection arrangements — placing compliance costs on the State, detaining authorities and contracted service providers.
This Act implements for Tasmania parts of the Optional Protocol to the Convention against Torture (the Optional Protocol) by creating a Tasmanian national preventive mechanism (NPM) and by enabling visits and information exchange with the UN Subcommittee on Prevention of Torture (the Subcommittee). Mechanically, it:
Establishes a statutory office or person(s) as the Tasmanian national preventive mechanism (s 8; Schedule 1). The Governor appoints the NPM (s 8(1)), and Schedule 1 sets detailed rules on eligibility, term, suspension, removal and conditions of appointment.
Confers on the Tasmanian NPM a broad set of investigative, advisory and reporting functions modelled on the Optional Protocol, including regular examination of treatment, requiring production of information, access to inspect places of detention, interviewing detainees and publishing guidelines and reports (s 9).
Provides for staffing and operational arrangements: the NPM may appoint staff, engage State Service officers via the Secretary of a department, and delegate functions (ss 11-12).
Grants intrusive inspection powers: access, inspection and review of any place of detention at any time and on as many occasions as the NPM thinks fit, with or without notice, and with reasonable assistance or equipment (s 13). The NPM may take photographs, audio‑visual recordings and publish an inspection schedule (s 13(2)-(3)).
Provides enforceable rights for access to detainees and confidential interviews (s 15), and statutory powers to require information, documents or things from persons (s 16), with a specific declaration that the Crown cannot obstruct production for inspection purposes (s 16(3)).
Sets out procedures for recommendations, follow up and escalation where recommendations are not implemented (ss 17-19). The NPM may refer matters for investigation to relevant authorities, responsible Ministers or the Subcommittee (s 21).
Current sections
Direct links to the current provisions in OPCAT Implementation Act 2021.
deprivation of liberty has the meaning that it has in the Optional Protocol;
detainee means a person in a place of detention who is deprived of his or her liberty;
detaining authority, in relation to a place of detention, means the person or entity for the time being in charge of the place of detention and includes any person or entity responsible for the day-to-day care, control, health and safety of detainees in that place of detention;
entity includes an unincorporated body;
expert means an expert selected in accordance with Article 13 of the Optional Protocol;
function includes a power, authority or duty;
information includes documents, records, recordings, registers, data and electronic communications;
Ministerial arrangement means an arrangement entered into under section 29 ;
national preventive mechanism has the meaning that it has in the Optional Protocol;
National Preventive Mechanism Coordinator means the Office of the Commonwealth Ombudsman established by the Ombudsman Act 1976 of the Commonwealth or another body nominated from time to time as the National Preventive Mechanism Coordinator for Australia in relation to the Optional Protocol;
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;
public authority has the meaning that it has in the Ombudsman Act 1978 ;
relevant authority means the following persons and bodies:
(a) the responsible Secretary;
(b) a detaining authority;
(c) a public authority;
(d) a person or body, or class of persons or bodies, prescribed for the purposes of this definition;
responsible Minister, in relation to a place of detention, means a Minister administering an Act, or portion of an Act, conferring functions on, or regulating the exercise of functions by, a detaining authority for that place of detention;
responsible Secretary means –
(a) the Secretary responsible for a place of detention; or
(b) in the case of the Department of Police, Fire and Emergency Management, the Commissioner of Police; or
(c) in the case of services provided in a place of detention, the Secretary of the department responsible for the provision of those services;
Secretary means the Secretary of the Department;
staff, in relation to a Tasmanian national preventive mechanism, means a person who is appointed, employed or made available under section 12 and includes a person to whom a function is delegated in accordance with section 11 ;
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;
Tasmanian national preventive mechanism means a person appointed under section 8 .
(2) For the purposes of this Act, an entity or person engaged by or on behalf of a detaining authority or the State to provide services under a contract as, or on behalf of, a detaining authority is taken to be a detaining authority.
5
Meaning of place of detention
5 Meaning of place of detention
(1) In this section –
closed psychiatric facility means the following facilities within the meaning of the Mental Health Act 2013 :
(a) an approved facility;
(b) a secure institution.
(2) In this Act, a place of detention is any place, subject to the jurisdiction and control of Tasmania, that the Subcommittee must be allowed to visit under Article 4 of the Optional Protocol.
(3) Without limiting subsection (2) , each of the following places that are subject to the jurisdiction and control of Tasmania and in which persons are deprived of their liberty is a place of detention for the purposes of this Act:
(a) a correctional centre, prison, detention centre or other similar place (however described);
(b) a hospital or other similar place;
(c) a closed psychiatric facility;
(d) a police station or court cell complex;
(e) a vehicle used or operated to convey detainees;
(f) a place prescribed for the purposes of this section.
6
Act binds Crown
6 Act binds Crown
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
7
Relationship to other laws
7 Relationship to other laws
A provision of any other Act that prevents, or limits, the exercise of any function by a Tasmanian national preventive mechanism or the Subcommittee, with respect to a detainee or place of detention in accordance with this Act, has no effect or operation to the extent of any inconsistency with this Act.
Part 2
Tasmanian National Preventive Mechanism
Part 2 Tasmanian National Preventive Mechanism
Division 1
Appointment, functions and staffing
Division 1 Appointment, functions and staffing
8
Tasmanian national preventive mechanism
8 Tasmanian national preventive mechanism
(1) The Governor may appoint a person, or more than one person, as a Tasmanian national preventive mechanism.
(2) Schedule 1 has effect with respect to a Tasmanian national preventive mechanism and his or her appointment.
9
Functions
9 Functions
(1) A Tasmanian national preventive mechanism has the following functions:
(a) to regularly examine the treatment of persons deprived of their liberty in places of detention with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;
(b) to require the provision of, or access to, or to copy and retain copies of, information held by any person concerning –
(i) detainees, including the number and treatment of such detainees and the conditions of their detention; and
(ii) places of detention, including the number of such places and their location;
(c) to access, inspect and review places of detention in accordance with section 13 ;
(d) to interview detainees, and any other persons whom he or she believes may supply relevant information, in accordance with Article 20(d) of the Optional Protocol;
(e) to have contact, meet and exchange any information obtained in accordance with this Act with the Subcommittee and a national preventive mechanism of any other Australian jurisdiction;
(f) to refer matters relating to a detainee or place of detention to an appropriate agency for consideration or action;
(g) to receive information from any person, body or agency in relation to a detainee or place of detention;
(h) to make recommendations, and provide advice, to the relevant authorities with the aim of improving the treatment and the conditions of persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;
(i) to develop and publish guidelines and standards in respect of detainees or places of detention;
(j) to submit proposals and observations concerning existing or draft legislation that relates to detainees or places of detention;
(k) to publish reports, recommendations, advice or findings in relation to detainees or places of detention;
(l) to engage in consultation in relation to policy relating to detainees or places of detention with a responsible Secretary or a responsible Minister;
(m) such other functions as may be conferred or imposed on a Tasmanian national preventive mechanism under this or any other Act;
(n) to do all things necessary or convenient to be done in connection with, or incidental to, the exercise of his or her functions.
(2) A Tasmanian national preventive mechanism may from time to time amend the guidelines and standards developed and published under subsection (1) .
10
Independence
10 Independence
In exercising functions under this Act, a Tasmanian national preventive mechanism, a person to whom functions have been delegated under section 11 and any staff of a Tasmanian national preventive mechanism appointed, employed or made available under section 12 , are authorised and required to act independently and impartially, and have complete discretion in the exercise of those functions.
11
Delegation
11 Delegation
A Tasmanian national preventive mechanism may delegate any of his or her functions under this Act, other than this power of delegation, to any person or body that is, in the opinion of the Tasmanian national preventive mechanism, competent to perform that function.
12
Staff
12 Staff
(1) Subject to and in accordance with the State Service Act 2000 , a person may be appointed or employed for the purposes of enabling a Tasmanian national preventive mechanism to exercise his or her functions under this Act.
(2) A Tasmanian national preventive mechanism may make arrangements with the Secretary of a department for State Service officers and State Service employees employed in the department to be made available to enable a Tasmanian national preventive mechanism to exercise his or her functions under this Act.
(3) A State Service officer or State Service employee made available under subsection (2) may serve a Tasmanian national preventive mechanism in any capacity in conjunction with State Service employment.
(4) In appointing or employing staff, or making arrangements for staff to be made available under this section, a Tasmanian national preventive mechanism is to take into consideration –
(a) whether the staff have the required capabilities and professional knowledge required to undertake their duties; and
(b) whether the staff adequately represent a balance of gender, and of people identifying as belonging to diverse groups, including the following groups:
(i) cultural and ethnic groups, including people who identify as Aboriginal or Torres Strait Islander;
(ii) people living with disability; and
(c) whether the staff have a conflict of interest in relation to the purposes of this Act.
(5) If a person ceases to be staff of a Tasmanian national preventive mechanism, the Tasmanian national preventive mechanism is to notify the Secretary of that cessation within 30 days after its occurrence.
Division 2
Inspections
Division 2 Inspections
13
Inspection of place of detention
13 Inspection of place of detention
(1) A Tasmanian national preventive mechanism may access, inspect and review any place of detention, aspect of a place of detention or any equipment or facilities used in connection with a place of detention –
(a) at any time and on as many occasions as he or she thinks fit; and
(b) with or without notice; and
(c) with any assistance or equipment that he or she thinks is reasonably necessary.
(2) A Tasmanian national preventive mechanism and any member of staff of a Tasmanian national preventive mechanism may take such photographs, films or audio or visual recordings as he or she considers necessary to perform his or her functions.
(3) A Tasmanian national preventive mechanism may publish a schedule of the dates and locations at which he or she intends to carry out inspections under this section.
14
Identification
14 Identification
(1) A Tasmanian national preventive mechanism is to issue to himself or herself, and each member of staff of the Tasmanian national preventive mechanism, an identity card.
(2) An identity card must contain at least the name and a recent photograph of the person to whom it is issued.
(3) A Tasmanian national preventive mechanism, and a member of staff of a Tasmanian national preventive mechanism, when exercising his or her functions under this Act, is to allow a detainee or member of staff of a place of detention to inspect his or her identity card.
(4) When a person ceases for any reason to be a member of staff of a Tasmanian national preventive mechanism, the Tasmanian national preventive mechanism is to take reasonable measures to retrieve the person's identity card or ensure that it has been properly disposed of.
15
Access to persons
15 Access to persons
(1) A Tasmanian national preventive mechanism is entitled to have access to a detainee at all times.
(2) The person in charge of a place of detention, each member of the staff of a place of detention and any person providing services in a place of detention –
(a) must allow a Tasmanian national preventive mechanism to conduct an interview with a detainee, out of the hearing of any other person; and
(b) must allow a Tasmanian national preventive mechanism to be accompanied by an interpreter in conducting an interview with a detainee if deemed necessary by the Tasmanian national preventive mechanism; and
(c) must not, without the approval of the detainee, read, copy or remove any correspondence –
(i) from a detainee to a Tasmanian national preventive mechanism; or
(ii) from a Tasmanian national preventive mechanism to a detainee.
16
Requiring of documents &c.
16 Requiring of documents &c.
(1) A Tasmanian national preventive mechanism may, by notice served on a person, require that person to produce to –
(a) the Tasmanian national preventive mechanism; or
(b) a person designated by the Tasmanian national preventive mechanism –
any information, document or thing in that person's possession or control that the Tasmanian national preventive mechanism considers relevant to an inspection carried out under section 13 .
(2) Information required to be produced under subsection (1) may include information relating to –
(a) the number and treatment of detainees and the conditions of their detention; and
(b) places of detention, including the number of such places and their location.
(3) The Crown may not prevent or obstruct information from being produced, or evidence from being given, for the purpose of an inspection carried out under section 13 , even though it would be entitled to do so if the inspection were a legal proceeding held before a court.
(4) A person is not excused from giving information, producing a record or answering a question, when required to do so under this Act, on the ground that to do so would disclose legal advice furnished to an agency or instrumentality of the Tasmanian government or another authority to which this Act applies.
17
Action on evidence of breach of duty
17 Action on evidence of breach of duty
If, during or after an inspection carried out under section 13 , a Tasmanian national preventive mechanism is of the opinion that –
(a) there is evidence of a breach of duty or misconduct on the part of the responsible Secretary or any officer or employee of an agency or instrumentality of the Tasmanian government; and
(b) in all the circumstances, the evidence is of sufficient force to justify his or her doing so –
the Tasmanian national preventive mechanism may bring the evidence –
(c) in the case of the responsible Secretary, to the notice of a responsible Minister; and
(d) in any other case, to the notice of the responsible Secretary.
18
Recommendations and advice
18 Recommendations and advice
(1) A Tasmanian national preventive mechanism may make such recommendations or provide such advice, with respect to an inspection carried out under section 13 , to a relevant authority as he or she considers necessary or appropriate.
(2) A relevant authority is to enter into dialogue with the Tasmanian national preventive mechanism regarding the steps to be taken to enable effect to be given to a recommendation made, or advice provided, under subsection (1) .
(3) If a Tasmanian national preventive mechanism makes a recommendation or provides advice under subsection (1) to a relevant authority, he or she may request the relevant authority to notify him or her, within a specified time, of –
(a) the steps that have been, or are proposed to be, taken to give effect to the recommendation or advice; or
(b) if no such steps have been or are proposed to be taken, the reasons why they have not been taken or, as the case may be, are not proposed to be taken.
(4) Where it appears to the Tasmanian national preventive mechanism that no appropriate steps have been taken within a reasonable time, he or she may, after considering any comments made by or on behalf of the relevant authority to whom the recommendation was made or advice was provided, send to the Premier and a responsible Minister a copy of that recommendation or advice together with a copy of any such comments.
19
Report
19 Report
(1) A Tasmanian national preventive mechanism may, at any time –
(a) provide a report to a responsible Minister, or a relevant authority, on any matter relating to an inspection carried out under section 13 ; and
(b) give advice as the Tasmanian national preventive mechanism considers necessary or appropriate in relation to the matter.
(2) If, at any time after providing a report under subsection (1) , the Tasmanian national preventive mechanism considers it necessary or appropriate to do so, he or she may table the report in each House of Parliament.
(3) A responsible Minister, or a relevant authority, may prepare a response to the report and provide it to the Tasmanian national preventive mechanism.
20
Opportunity to be heard
20 Opportunity to be heard
(1) A Tasmanian national preventive mechanism is not to –
(a) make recommendations or provide advice under section 18 ; or
that contains adverse or derogatory comments in respect of a person unless the Tasmanian national preventive mechanism has given the person a reasonable opportunity –
(d) to appear before him or her; or
(e) to make representations to him or her, either orally or in writing.
(2) A Tasmanian national preventive mechanism is not to –
(a) make recommendations or provide advice under section 18 ; or
that contains adverse or derogatory comments in respect of the department responsible for a place of detention or the services provided in the place of detention, unless –
(d) the Tasmanian national preventive mechanism has given the responsible Secretary, and any relevant officer or employee of the responsible department, a reasonable opportunity –
(i) to appear before him or her; or
(ii) to make representations to him or her, either orally or in writing; and
(e) the Tasmanian national preventive mechanism has provided a draft of the report to the responsible Secretary.
Division 3
Referrals and reporting
Division 3 Referrals and reporting
21
Referral of matters by Tasmanian national preventive mechanism
21 Referral of matters by Tasmanian national preventive mechanism
(1) A Tasmanian national preventive mechanism may refer for investigation to the following persons or bodies any matter raised by, or in the course of, the exercise of the functions of the Tasmanian national preventive mechanism:
(a) a relevant authority;
(b) a responsible Minister;
(c) the Subcommittee.
(2) A Tasmanian national preventive mechanism’s functions to inspect, make recommendations, provide advice in relation to, or report on, a matter are not affected by the matter having been referred under subsection (1) for investigation.
22
Provision of information to Tasmanian national preventive mechanism
22 Provision of information to Tasmanian national preventive mechanism
(1) A person or body may provide to a Tasmanian national preventive mechanism any information that he, she or it considers relevant to the exercise of the functions of the Tasmanian national preventive mechanism.
(2) For the avoidance of doubt, the following persons or bodies may provide to a Tasmanian national preventive mechanism any information, referred to in subsection (1) , that is raised by, or in the course of, the exercise of the functions of that person or body:
(a) a relevant authority;
(b) a responsible Minister;
(c) the Office of the Commonwealth Ombudsman established by the Ombudsman Act 1976 of the Commonwealth;
(d) a person exercising functions in another Australian jurisdiction similar to those exercised by a Tasmanian national preventive mechanism under this Act;
(e) the Subcommittee.
23
Disclosure of information by national preventive mechanism
23 Disclosure of information by national preventive mechanism
(1) Despite a provision of this or any other Act, a Tasmanian national preventive mechanism may disclose information raised by, or in the course of, the exercise of his or her functions under this or any other Act to either or both of the following persons:
(a) a person exercising functions in another Australian jurisdiction similar to those exercised by a Tasmanian national preventive mechanism under this Act;
(b) the National Preventive Mechanism Coordinator.
(2) For the avoidance of doubt, subsection (1) applies to a person referred to in subsection (1)(a) in respect of any kind of place of detention.
24
Annual report
24 Annual report
(1) Each Tasmanian national preventive mechanism is required to submit an annual report to the National Preventive Mechanism Coordinator within the period of 4 months after 30 June in each year.
(2) The annual report under this section is to include the following matters:
(a) a description of the activities of the Tasmanian national preventive mechanism during that year in relation to the functions of the Tasmanian national preventive mechanism;
(b) an evaluation of the response of relevant authorities to the recommendations or advice of the Tasmanian national preventive mechanism;
(c) any recommendations for changes in the laws of the State, or for administrative action, that the Tasmanian national preventive mechanism considers should be made as a result of the exercise of his or her functions.
Division 4
Offences
Division 4 Offences
25
Disclosure of information by Tasmanian national preventive mechanism
25 Disclosure of information by Tasmanian national preventive mechanism
(1) Except as provided in subsections (2) and (3) , a person who is, or has been, a Tasmanian national preventive mechanism, a delegate of a Tasmanian national preventive mechanism or staff of a Tasmanian national preventive mechanism must not, either directly or indirectly, make a record of, or disclose, any information that was –
(a) acquired in his or her official capacity; and
(b) disclosed or obtained under this Act.
Penalty: Fine not exceeding 20 penalty units.
(2) Subsection (1) does not prevent a Tasmanian national preventive mechanism or a member of his or her staff making a record of or disclosing information if the making of the record or the disclosure –
(a) is reasonably required for the proper exercise of the functions of the Tasmanian national preventive mechanism; or
(b) is done with the consent –
(i) in the case of information given by an officer of a place of detention or of a department which provides a service at a place of detention – of the responsible Secretary or a responsible Minister; or
(ii) in the case of information given by a member of a public authority – of the governing body of the authority or a responsible Minister; or
(iii) in any other case – of the person by whom the information was given, if that person is entitled or authorised to give the information.
(3) Subsection (1) does not prevent a Tasmanian national preventive mechanism from disclosing information –
(a) to a relevant authority; or
(b) to a responsible Minister; or
(c) to the Auditor-General or the Deputy Auditor-General appointed under the Audit Act 2008 ; or
(d) to the Ombudsman and the Deputy Ombudsman appointed under the Ombudsman Act 1978 ; or
(e) to the Office of the Commonwealth Ombudsman established by the Ombudsman Act 1976 of the Commonwealth; or
(f) to a person exercising, in another Australian jurisdiction, functions similar to those exercised by a Tasmanian national preventive mechanism under this Act; or
(g) to the Subcommittee; or
(h) in the course of referring a matter under section 21 .
(4) A person must not compel a person who is or has been a Tasmanian national preventive mechanism or a member of his or her staff, in proceedings before a court or before a person authorised by law or by consent of parties to hear, receive and examine evidence, to disclose information that was –
(a) acquired in his or her official capacity; and
(b) disclosed or obtained under this Act.
(5) A person who is, or has been, a Tasmanian national preventive mechanism, a delegate of a Tasmanian national preventive mechanism or staff of a Tasmanian national preventive mechanism must not publish information, without the consent of the person to whom the information relates, that enables the identity of that person to be ascertained or discovered.
Penalty: Fine not exceeding 20 penalty units.
(6) A person must not use any information disclosed or obtained under this Act for his or her benefit or the benefit of any other person.
Penalty: Fine not exceeding 50 penalty units.
(7) In this section, a reference to the disclosure of information includes a reference to the delivery or the giving to a person of that information or a copy of it or of any part of it.
26
Offence not to comply with requirement of Tasmanian national preventive mechanism
26 Offence not to comply with requirement of Tasmanian national preventive mechanism
(1) A person must comply with a request or requirement of a Tasmanian national preventive mechanism that is relevant to the exercise of the Tasmanian national preventive mechanism’s functions under this Act.
Penalty: Fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.
(2) Subsection (1) does not apply if such compliance would require the person to provide information, answer questions or produce documents –
(a) in respect of which there is a lawful claim or right of privilege, if the information, questions or documents are not legal advice furnished to an agency or instrumentality of the Tasmanian government or other authority to which this Act applies; or
(b) that may incriminate the person in an offence.
27
Offences against Tasmanian national preventive mechanism
27 Offences against Tasmanian national preventive mechanism
A person must not –
(a) without reasonable excuse, wilfully obstruct, hinder, resist or threaten a Tasmanian national preventive mechanism, or a member of his or her staff, in the exercise of functions under this Act; or
(b) without reasonable excuse, refuse, or wilfully fail, to comply with any lawful requirement of a Tasmanian national preventive mechanism, or a member of his or her staff, except as specified in section 26 ; or
(c) wilfully make any false statement to mislead, or attempt to mislead, a Tasmanian national preventive mechanism, or a member of his or her staff.
Penalty: Fine not exceeding 50 penalty units.
Part 3
Monitoring by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Part 3 Monitoring by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
28
Interpretation
28 Interpretation
In this Part –
relevant place of detention means a place of detention to which the Subcommittee requests access.
29
Ministerial arrangements
29 Ministerial arrangements
(1) The Minister may enter into arrangements with the Attorney-General of the Commonwealth for the purpose of facilitating the exercise in Tasmania by the Subcommittee of its functions under and in accordance with the Optional Protocol and the provisions of this Act.
(2) Without limiting subsection (1) , such Ministerial arrangements may be made for, or in respect of, the following:
(a) the care, direction, control and management of detainees and other persons within places of detention;
(b) the safety and security of places of detention;
(c) access to, and disclosure of, information;
(d) publication of information;
(e) the privacy of individuals or their rights to the confidentiality of personal information about them;
(f) the special needs of children, young persons who have not attained the age of 18 years and other vulnerable persons;
(g) urgent and compelling risks to public health caused by outbreaks of infectious diseases.
(3) Ministerial arrangements made under this section must be consistent with, and appropriate for the purpose of implementing, the Optional Protocol.
(4) A detaining authority has, and may exercise, such functions as are necessary, under the relevant Ministerial arrangements, to give effect to the Optional Protocol.
(5) The Minister may enter into arrangements with the Attorney-General of the Commonwealth for the exercise of functions under this Act with respect to places of detention and detainees under the control and jurisdiction of the Commonwealth.
30
Duties of detaining authority and responsible Minister for places of detention
30 Duties of detaining authority and responsible Minister for places of detention
The detaining authority and a responsible Minister in relation to a relevant place of detention must ensure that the Subcommittee, any accompanying experts and any persons appointed under Ministerial arrangements to assist the Subcommittee, are –
(a) given access to the relevant place of detention; and
(b) able to exercise their functions under and in accordance with the Optional Protocol in that place.
31
Subcommittee's access to places of detention
31 Subcommittee's access to places of detention
(1) A responsible Minister and a detaining authority in relation to a relevant place of detention must ensure that the Subcommittee, any experts accompanying the Subcommittee and any persons appointed under Ministerial arrangements to assist the Subcommittee, are given unrestricted access to every part of that place, except as provided by subsections (2) and (3) .
(2) If the detaining authority in relation to a place of detention considers that one or more grounds specified in Article 14(2) of the Optional Protocol may temporarily prevent the carrying out of a visit by the Subcommittee, the detaining authority may prohibit or restrict access to the place of detention so that the Attorney-General of the Commonwealth may, in accordance with Ministerial arrangements, be requested to object, and decide whether or not to object, to the visit.
(3) A detaining authority may prohibit or restrict access to the place of detention –
(a) if an objection to the Subcommittee's visit has been made by the Attorney-General of the Commonwealth, in accordance with Ministerial arrangements, on one or more of the grounds specified in Article 14(2) of the Optional Protocol; and
(b) the objection has not been withdrawn or otherwise resolved by the Attorney-General of the Commonwealth in accordance with Ministerial arrangements.
32
Access to information
32 Access to information
(1) A responsible Minister, a responsible Secretary and a detaining authority in relation to a place of detention to which the Subcommittee requests access must ensure that the Subcommittee and any accompanying experts are provided with all relevant information that is requested by the Subcommittee for the purpose of evaluating the needs and measures that should be adopted to strengthen, if necessary, the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment.
(2) A detaining authority in relation to a place of detention must, at the request of the Subcommittee and in accordance with Ministerial arrangements, permit the Subcommittee to have unrestricted access to the following information in relation to the place of detention:
(a) the number of detainees in the place of detention;
(b) the treatment of detainees at the place of detention;
(c) the conditions of detention applying to detainees in that place of detention.
(3) Access, to which the Subcommittee is entitled under this section, includes the right to inspect any information that is under the control of a responsible Minister or a detaining authority, or whose production the responsible Minister or detaining authority may, in an official capacity, reasonably require.
(4) Despite subsections (1) and (2), this section does not entitle the Subcommittee to request information held by any of the following persons (protected professionals) in the following circumstances:
(b) an Australian lawyer, within the meaning of the Legal Profession Act 2007 , or other lawyer concerning legal advice given to a client who is or was a detainee;
(c) any other person who acted in a professional capacity with a person who is or was a detainee and who was under an express or implied obligation arising under law not to disclose any information or confidence arising out of that relationship.
(5) A protected professional is not subject to any civil or criminal liability if the Subcommittee is given access under this section to any information of a kind referred to in subsection 4 by the responsible Minister or a detaining authority and no action, claim or demand may be taken or made of or against the protected professional with respect to disclosure of the information.
33
Subcommittee may interview detainees and other persons
33 Subcommittee may interview detainees and other persons
(1) A responsible Minister and a detaining authority in relation to a place of detention to which the Subcommittee requests access must ensure that the Subcommittee and any accompanying experts are provided with all reasonable assistance to interview, without witnesses, either personally or through an interpreter, any detainee or any other person at the place of detention whom the Subcommittee chooses to interview.
(2) It is the duty of a responsible Minister in relation to a place of detention to provide the Subcommittee with all reasonable assistance to interview, without witnesses, either personally or through an interpreter, any person who the Subcommittee believes may be able to give it relevant information concerning the place of detention, the treatment of detainees at the place of detention or the conditions of their detention.
(3) Nothing in this section prevents a person, chosen by a person whom the Subcommittee wishes to interview, from being present during the interview at that person's request.
(4) Nothing in this section requires a person, who objects to, or who does not consent to, being interviewed by the Subcommittee, to participate in an interview.
(5) Before undertaking an interview in accordance with this section, it is the duty of the Subcommittee to advise a detainee who is subject to a detention order under the Youth Justice Act 1997 that –
(a) the detainee may refuse to be interviewed by the Subcommittee; and
(b) if the detainee consents to being interviewed by the Subcommittee, the detainee may choose a person to be present at that interview.
Part 4
Provision of Information
Part 4 Provision of Information
34
Exemption from Personal Information Protection Act 2004
34 Exemption from Personal Information Protection Act 2004
A person who is a personal information custodian, within the meaning of the Personal Information Protection Act 2004 , is not taken to have contravened that Act by reason of collecting, using, disclosing or otherwise dealing with information in accordance with this Act.
35
Protections for provision of information
35 Protections for provision of information
(1) This section applies if a person provides information to a Tasmanian national preventive mechanism or the Subcommittee –
(a) as requested or required by the Tasmanian national preventive mechanism or the Subcommittee, respectively, under this Act; or
(b) of their own volition for the purposes of this Act.
(2) In so far as the information referred to in subsection (1) is provided in good faith, whether the information is true or false, the person –
(a) does not incur any civil or criminal liability; and
(b) cannot be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted standard of professional conduct; and
(c) cannot be held to have contravened any Act –
in respect of the provision of that information.
(3) For the avoidance of doubt, this section applies to information obtained in accordance with the following Acts:
(a) prejudice, or threaten to prejudice, the safety or career of; or
(b) intimidate or harass, or threaten to intimidate or harass; or
(c) do any act that is, or is likely to be, to the detriment of; or
(d) incite or permit another person to take any of the actions specified in paragraph (a) , (b) or (c) in relation to –
another person because the other person has provided, is providing or may in the future provide information, whether true or false, to a Tasmanian national preventive mechanism or the Subcommittee for the purposes of this Act.
Penalty: Fine not exceeding 240 penalty units or imprisonment for a term not exceeding 2 years, or both.
Part 5
Miscellaneous
Part 5 Miscellaneous
37
Directions of responsible Minister
37 Directions of responsible Minister
(1) A responsible Minister in relation to a place of detention may, by notice in writing, give directions to any detaining authority for the place of detention for the purposes of this Act.
(2) The detaining authority is to comply with any directions given by a responsible Minister under this section.
38
Protection from liability
38 Protection from liability
(1) In this section –
monitoring authority means –
(a) a Tasmanian national preventive mechanism; or
(b) any staff of a Tasmanian national preventive mechanism; or
(c) the Subcommittee; or
(d) any staff or accompanying experts of the Subcommittee; or
(e) any persons appointed under Ministerial arrangements to assist the Subcommittee.
(2) Anything done or omitted to be done, in good faith, by a monitoring authority, does not make the monitoring authority subject to any action, liability, claim or demand.
(3) A monitoring authority does not incur any personal liability in respect of any act done or omitted to be done by the monitoring authority in good faith in the exercise, or purported exercise, of any function under this Act.
(4) A civil liability that would, but for this section, attach to a monitoring authority attaches to the Crown.
39
Regulations
39 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(3) The regulations may –
(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and
(b) in respect of such an offence, provide for the imposition of a fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.
(4) The regulations may authorise any matter to be from time to time determined, applied or regulated by a Tasmanian national preventive mechanism or any other specified person or body.
Parliament includes the Parliament of the Commonwealth or of any State or Territory.
2. Eligibility for appointment
(1) A person must not be appointed as, or carry out the role of, a Tasmanian national preventive mechanism if he or she –
(a) is, or becomes, a member of a House of Parliament; or
(b) is, or becomes, a candidate for election as a member of a House of Parliament; or
(c) has, within the previous 3 years, been a member of a House of Parliament.
(2) A person may hold office as a Tasmanian national preventive mechanism in conjunction with the office of Ombudsman under the Ombudsman Act 1978 .
3. Acting Tasmanian national preventive mechanism
(1) In this clause, a Tasmanian national preventive mechanism is absent if he or she –
(a) is absent from duty; or
(b) is absent from Australia; or
(c) is suspended from the office of Tasmanian national preventive mechanism; or
(d) is otherwise unable to exercise the functions of that office.
(2) The Governor may appoint a person to act as a Tasmanian national preventive mechanism during any or every period during which a Tasmanian national preventive mechanism is absent.
(3) While a person appointed under subclause (2) is acting as a Tasmanian national preventive mechanism –
(a) that person is taken to be a Tasmanian national preventive mechanism; and
(b) this Act and any other Act applies to that person as if he or she were a Tasmanian national preventive mechanism.
4. Term of office
A Tasmanian national preventive mechanism holds office for such term, not exceeding 5 years, as is specified in the instrument of appointment, and may be reappointed.
5. Conditions of appointment
(1) A Tasmanian national preventive mechanism is entitled to be paid the remuneration and allowances specified in his or her instrument of appointment.
(2) If a State Service officer or State Service employee is appointed as a Tasmanian national preventive mechanism, that officer or employee is entitled to retain all his or her existing and accruing rights as if service as a Tasmanian national preventive mechanism were a continuation of service as such an officer or employee.
(3) Where a person ceases to be a Tasmanian national preventive mechanism and becomes a State Service officer or State Service employee, service as a Tasmanian national preventive mechanism is service in the State Service for the purposes of determining his or her rights as such an officer or employee.
(4) A Tasmanian national preventive mechanism holds office on such conditions in relation to matters not provided for by this Act as are specified in his or her instrument of appointment.
(1) A Tasmanian national preventive mechanism must inform the Governor in writing of any direct or indirect interest that the Tasmanian national preventive mechanism has, or acquires, that conflicts or may conflict with the Tasmanian national preventive mechanism's functions under the Act.
(2) After advising the Governor under subclause (1) , the Tasmanian national preventive mechanism must take steps to resolve the conflict or possible conflict between a direct or indirect interest and the Tasmanian national preventive mechanism's functions in relation to a particular matter and, unless the conflict is resolved to the Governor's satisfaction, the Tasmanian national preventive mechanism is disqualified from acting in relation to the matter.
7. Resignation
A Tasmanian national preventive mechanism may resign by signed notice given to the Governor.
8. Suspension
(1) The Governor may suspend a Tasmanian national preventive mechanism from office if the Governor is satisfied that the Tasmanian national preventive mechanism –
(a) is physically or mentally incapable of continuing as a Tasmanian national preventive mechanism; or
(b) is unable to exercise adequately or competently the functions of the office of Tasmanian national preventive mechanism; or
(c) has been convicted, in Tasmania or elsewhere, of an offence punishable by a term of imprisonment; or
(d) has become bankrupt, applied to take the benefit of the law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of his or her remuneration or estate for their benefit; or
(e) has engaged in misconduct.
(2) Where a Tasmanian national preventive mechanism has been suspended from office, the Tasmanian national preventive mechanism is restored to office if –
(a) a statement specifying the reasons for the suspension is not laid before each House of Parliament during the first 7 sitting-days of that House following the suspension; and
(b) each House of Parliament does not pass an address praying for the removal of the Tasmanian national preventive mechanism from office during the session in which, and within 30 sitting-days after, such a statement is laid before it.
9. Removal from office
(1) The Governor, on addresses from both Houses of Parliament, may remove a Tasmanian national preventive mechanism from office.
(2) A Tasmanian national preventive mechanism may not be removed from office except as provided in subclause (1) .
10. Filling a vacancy
(1) A Tasmanian national preventive mechanism vacates office if he or she –
(2) The Governor may appoint a person to the vacant office of Tasmanian national preventive mechanism.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the OPCAT Implementation Act 2021 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
3 Purpose of Act
3 Purpose of Act
The purpose of this Act is to enable –
(a) a national preventive mechanism to be appointed and maintained to fulfil the mandate set out in Part IV of the Optional Protocol; and
(b) the Subcommittee to fulfil the mandate set out in Article 11 of the Optional Protocol –
in relation to Tasmania.
4 Interpretation
4 Interpretation
(1) In this Act –
department means department as defined in the Administrative Arrangements Act 1990 ;
deprivation of liberty has the meaning that it has in the Optional Protocol;
detainee means a person in a place of detention who is deprived of his or her liberty;
detaining authority, in relation to a place of detention, means the person or entity for the time being in charge of the place of detention and includes any person or entity responsible for the day-to-day care, control, health and safety of detainees in that place of detention;
entity includes an unincorporated body;
expert means an expert selected in accordance with Article 13 of the Optional Protocol;
function includes a power, authority or duty;
includes documents, records, recordings, registers, data and electronic communications;
Creates a regime of confidentiality and limited disclosure for information acquired in the course of the NPM’s functions, including criminal and civil prohibitions on unauthorised disclosure, together with enumerated exceptions (s 25).
Enables the UN Subcommittee to visit and to be provided with information and interviews; the Minister may enter into Ministerial arrangements with the Commonwealth Attorney‑General to facilitate Subcommittee visits and to manage specified matters such as safety, privacy and public health (Part 3, ss 28-33, especially s 29).
Provides protections for people who provide information in good faith and for those who might be subject to reprisals for providing information (ss 35-36).
Contains protections from liability for monitoring authorities acting in good faith (s 38), and administrative tools such as Ministerial directions to detaining authorities (s 37) and a regulation‑making power (s 39).
The Act binds the Crown in right of Tasmania (s 6) and explicitly overrides any inconsistent provision of another Act to the extent it prevents or limits the NPM or Subcommittee exercising functions under this Act (s 7). The Act does not commence automatically; commencement is by proclamation (s 2).
Main concepts
The Act operationalises several concepts from the Optional Protocol within Tasmanian law and defines key domestic terms.
Place of detention. The Act adopts the Optional Protocol’s scope and gives non‑exhaustive examples. A place of detention is any location subject to Tasmania’s jurisdiction and control that the Subcommittee must be allowed to visit under Article 4 of the Optional Protocol (s 5(2)). Specific examples include correctional centres, hospitals (including closed psychiatric facilities as defined under the Mental Health Act 2013), police or court cell complexes, vehicles used to convey detainees, and any place prescribed by regulation (s 5(3)). The definition therefore brings under the Act not only prisons and secure psychiatric institutions but also other sites where deprivation of liberty occurs, subject to regulation.
Deprivation of liberty and detainee. The Act uses the Optional Protocol definition of “deprivation of liberty” and defines “detainee” as a person in a place of detention deprived of his or her liberty (s 4).
Tasmanian national preventive mechanism (NPM). The NPM is the statutory appointee or appointees under s 8, with functions modelled on the Optional Protocol (s 9). Schedule 1 adds eligibility and governance rules (e.g. ineligibility if a member/ candidate of Parliament within three years; tenure not exceeding five years).
Subcommittee and National Preventive Mechanism Coordinator. The Subcommittee is the UN body established by the Optional Protocol (s 4). The Act also identifies a National Preventive Mechanism Coordinator for Australia , the Commonwealth Ombudsman’s Office or another nominated body (s 4 definition of National Preventive Mechanism Coordinator) , and requires annual reporting to that Coordinator (s 24).
Relevant authorities, responsible Secretary and responsible Minister. The Act defines who must respond to recommendations and provide access. “Relevant authority” includes the responsible Secretary, any detaining authority, public authorities and any prescribed persons or bodies (s 4). “Responsible Minister” and “responsible Secretary” are defined with specificity (s 4).
Information and protected professionals. “Information” is widely defined (s 4). The Act sets out limits to the Subcommittee’s access to information provided by certain protected professionals: registered health professionals, lawyers and other professionals subject to legal confidentiality obligations (s 32(4)-(5)).
Independence and delegation. The Act requires the NPM and its staff to act independently and impartially with complete discretion in the exercise of functions (s 10). The NPM may delegate functions (s 11), but not the power of delegation itself.
Confidentiality, disclosure and protection. The Act criminalises unauthorised disclosure by current or former NPMs and staff (s 25), while specifying exceptions for proper exercise of functions, disclosures to enumerated authorities (s 25(2)-(3)), and protections for persons providing information in good faith (s 35). It also protects individuals from reprisals for giving information (s 36).
Interaction with Crown and other laws. The Act binds the Crown (s 6) and gives itself primacy over inconsistent laws (s 7). It also exempts compliance with this Act from contravening the Personal Information Protection Act 2004 (s 34).
Together, these concepts design a mechanism that can inspect, gather information, issue recommendations, publish findings and facilitate UN Subcommittee visits, while defining confidentiality obligations, reporting lines and the administrative scaffolding for staffing and independence.
Who it affects
The Act creates duties and rights that affect a defined set of actors at both the individual and institutional level.
Primary affected actors
The Tasmanian national preventive mechanism and its staff. The Act establishes the NPM (s 8; Schedule 1), sets eligibility and conflict‑of‑interest rules (Schedule 1 cl 2, cl 6), prescribes independence (s 10), and sets obligations about conduct, confidentiality and reporting (ss 12, 25, 24).
Detaining authorities. A “detaining authority” is the person or entity in charge of a place of detention and includes entities responsible for day‑to‑day care, control, health and safety of detainees (s 4). Detaining authorities must grant access, allow interviews, provide information and not obstruct inspections (ss 13, 15, 16, 31-33). They also must comply with directions from responsible Ministers (s 37).
Responsible Ministers and Secretaries. Responsible Ministers and Secretaries have both obligations and decision roles. They must ensure the Subcommittee and the NPM can exercise functions (ss 30-33), enter into Ministerial arrangements with the Commonwealth Attorney‑General (s 29), and may give directions to detaining authorities (s 37). “Responsible Secretary” is defined to capture departmental heads and, for certain services, the Commissioner of Police (s 4).
Detainees. Detainees acquire rights to be interviewed confidentially (s 15(1)-(2)) and to refuse publication of correspondence without consent (s 15(2)(c)). The NPM has the authority to interview detainees and persons who may provide relevant information (s 9(1)(d); s 15).
Staff and contractors providing services in places of detention. The definition in s 4(2) treats contracted service providers as detaining authorities where they operate on behalf of a detaining authority, bringing them within the Act’s reach.
Protected professionals. Registered health professionals, lawyers and other professionals subject to confidentiality rules have limited duties to provide certain information to the Subcommittee (s 32(4)-(5)).
Other oversight bodies. The Ombudsman, Auditor‑General, Commonwealth Ombudsman (as National Coordinator), and similar jurisdictional NPMs are recipients of information under permitted disclosure exceptions (ss 23, 25(3), 24). Relevant authorities and responsible Ministers may be the recipients of NPM recommendations and reports (ss 18-19).
Parliament and the Governor. The Act places roles on the Governor for appointment, suspension and removal of the NPM (s 8; Schedule 1 cl 2, cl 8-9). The NPM may table reports in both Houses of Parliament (s 19(2)), and Schedule 1 sets procedures for suspension removal involving both Houses.
Secondary and indirect impacts
Departments. Departments must make State Service officers available to the NPM if arranged (s 12(2)), and a department may be the relevant authority required to respond to recommendations (s 18). Departments will bear the practical cost of staff, information provision and engagement with the NPM.
Courts and legal practitioners. The Act contains a non‑compellability provision for NPM staff in other proceedings (s 25(4)) and excludes privilege as a ground for non‑compliance only in a limited way (s 16(4) disallows as a ground the existence of legal advice furnished to an agency).
Civil liability insurers and the Crown. The Act transfers civil liability that would otherwise attach to monitoring authorities to the Crown (s 38(4)), affecting potential claims and who ultimately bears risk.
Who pays and who decides
Costs for remuneration, staff and operational support for the NPM are governed by instruments of appointment and staff arrangements under State Service law (Schedule 1 cl 5; s 12). The Governor appoints the NPM and may suspend or remove the NPM (Schedule 1 cl 8-9), while responsible Ministers and Secretaries decide operational matters in their domains and enter into Ministerial arrangements with Commonwealth counterparts (s 29).
Behavioural effects
Detaining authorities and departments will need to adopt processes to facilitate inspections, interviews, information production, and to respond to recommendations (ss 13, 15-16, 18-19). Protected professionals and staff must understand their disclosure entitlements and limitations (s 32; s 25). Persons providing information have statutory protections (s 35), which may change reporting behaviour.
Overall, the Act imposes operational duties on agencies running custodial and related facilities, creates new oversight obligations and privileges for a statutory NPM, and formalises interaction with the UN Subcommittee and Commonwealth coordination.
Key duties and rights
This section maps principal obligations imposed and rights conferred by the Act, with the statutory source and operational detail.
Duties imposed on detaining authorities, responsible Secretaries and responsible Ministers
Provide access for NPM inspections. A Tasmanian NPM may access, inspect and review any place of detention at any time and as often as required (s 13(1)). Detaining authorities must allow that access (ss 13; 15; 31).
Allow interviews with detainees. Detaining authorities, staff and service providers must allow interviews of detainees out of hearing of others and permit an interpreter if deemed necessary by the NPM (s 15(2)(a)-(b)). Correspondence between the NPM and detainees cannot be read, copied or removed without detainee approval (s 15(2)(c)).
Provide requested information and documents. The NPM may serve notices requiring persons to produce relevant information, documents or other things (s 16(1)). The content scope includes detainee numbers, treatment and conditions (s 16(2)). The Crown may not obstruct production (s 16(3)). Legal advice furnished to agencies is not an excuse for non‑compliance (s 16(4)) , the Act expressly narrows that ground as unavailable.
Ensure Subcommittee access. For visits requested by the Subcommittee, responsible Ministers and detaining authorities must ensure the Subcommittee and experts are given access and assistance, including interviews and information (ss 30-33). The default position is unrestricted access except where Article 14(2) grounds may temporarily prevent a visit and a request for the Commonwealth Attorney‑General to object is invoked under Ministerial arrangements (s 31(1)-(3)).
Respond to recommendations and engage in dialogue. Where the NPM makes recommendations, relevant authorities must enter into dialogue regarding implementation steps (s 18(2)). The NPM can request notification within a specified time about steps taken or reasons for inaction (s 18(3)). If steps are not taken within a reasonable time, the NPM may escalate to the Premier and a responsible Minister with supporting comments (s 18(4)).
Rights and powers conferred on the Tasmanian NPM
Broad inspection and investigative powers. As above, the NPM can inspect any place of detention, take photographs and recordings, and publish inspection schedules (s 13).
Information‑gathering powers. The NPM can require documents from any person and access data held by persons concerning detainees and places of detention (s 9(1)(b); s 16).
Confidential interviews and contact. The NPM has the right to interview detainees and other persons believed to have relevant information (s 9(1)(d); s 15).
Publication and reporting rights. The NPM may publish reports, recommendations, advice or findings (s 9(1)(k); s 19). It may also table reports in Parliament (s 19(2)) and must submit an annual report to the National Preventive Mechanism Coordinator within four months after 30 June each year (s 24).
Delegation and staffing. The NPM may delegate functions (s 11) and appoint or arrange staff (s 12).
Rights and protections for information providers and detainees
Protection from civil or criminal liability for providing information in good faith to the NPM or Subcommittee (s 35(2)), including a statement that the person cannot be held to have breached professional etiquette or contravened any Act in respect of that disclosure (s 35(2)(b)-(c)). This extends to disclosures under certain listed Acts (s 35(3)).
Protection from reprisals. It is an offence to prejudice, intimidate or do acts likely to be detrimental to someone because they provided, are providing or may provide information to the NPM or Subcommittee, with penalties up to 240 penalty units and/or 2 years imprisonment (s 36).
Non‑compellability of NPM staff in other proceedings. A person must not compel a current or former NPM or staff member to disclose information acquired in that official capacity in proceedings before courts or other authorised forums (s 25(4)).
Limits on powers and confidentiality obligations
Confidentiality obligations on the NPM and staff. Former and current NPMs and staff must not record or disclose acquired information except as allowed (s 25(1)-(3)). There are specific exceptions allowing disclosure for proper function, to relevant authorities, the Auditor‑General, Ombudsman, Commonwealth Ombudsman, other jurisdictional NPMs, or the Subcommittee (s 25(2)-(3)).
Protected professionals. The Subcommittee’s entitlement to request information does not extend to regulated health practitioners, lawyers or other professionals acting under a legal obligation of confidentiality (s 32(4)). If the Subcommittee is nevertheless given access to that information by a responsible Minister or detaining authority, the protected professional is indemnified from liability (s 32(5)).
Enforcement levers and sanctions
Failure to comply with a request by the NPM is an offence with fines up to 100 penalty units and continuing daily fines (s 26).
Obstruction, hindrance, resistance, threats or providing false statements to the NPM are penalised (s 27).
Unauthorised publication of identifying information is penalised (s 25(5)-(6)).
Reprisal offences carry higher penalties (s 36).
Administrative powers and protections
Ministerial directions to detaining authorities are authorised and must be complied with (s 37).
Monitoring authorities acting in good faith are protected from personal liability; where liability would attach, it instead attaches to the Crown (s 38).
These duties and rights create a legally enforceable inspection and reporting framework with statutory protections for both information providers and monitoring personnel, and robust duties on detaining authorities and ministers to facilitate inspection and follow up on recommendations.
Penalties and enforcement
The Act creates a mixed enforcement regime combining criminal or civil penalties for non‑compliance, statutory prohibitions on disclosure and reprisals, and administrative enforcement via referrals, ministerial directions and parliamentary reporting.
Monetary penalties and criminal exposure
Disclosure and publication. A person who is or has been the NPM, a delegate or staff must not record or disclose information acquired in their official capacity except as allowed; that prohibition attracts a fine not exceeding 20 penalty units (s 25(1)). Publishing information enabling the identity of a person to be ascertained without consent attracts a fine not exceeding 20 penalty units (s 25(5)). Using information disclosed under the Act for personal or another's benefit carries a fine not exceeding 50 penalty units (s 25(6)).
Failure to comply with requirement to produce information. Non‑compliance with an NPM request relevant to its functions is an offence with a fine not exceeding 100 penalty units, and, for continuing offences, a further fine up to 10 penalty units per day (s 26(1)). Subsection 26(2) recognises claimed privilege (other than legal advice to agencies) and self‑incrimination as grounds not to comply.
Obstruction and misleading conduct. Wilful obstruction, hindrance, resistance, threats, refusal to comply without reasonable excuse, or wilfully making false statements to mislead the NPM or staff is an offence with a penalty up to 50 penalty units (s 27).
Reprisal offences. It is an offence to prejudice, intimidate, harass or take detrimental action against someone because they provided or may provide information to the NPM or the Subcommittee. The penalty is up to 240 penalty units or imprisonment for up to 2 years, or both (s 36). This is the Act’s highest specified criminal sanction.
Regulations may prescribe offences. The Governor may make regulations that create offences and specify fines up to 20 penalty units and daily fines for continuing breaches (s 39(3)).
Enforcement mechanisms and administrative responses
Notices to produce. The NPM may serve a notice requiring production of information, documents or things (s 16(1)). The Act makes clear the Crown cannot use privilege or Crown privilege to obstruct production for inspection purposes (s 16(3)).
Referrals for investigation. The NPM may refer matters to relevant authorities, responsible Ministers or the Subcommittee (s 21(1)). Referral does not limit the NPM’s own inspection or reporting functions (s 21(2)).
Dialogue and escalation. Relevant authorities are required to enter into dialogue about steps to implement recommendations (s 18(2)). The NPM may request notification of steps taken or reasons for inaction within a specified time (s 18(3)). If no appropriate steps are taken within a “reasonable time”, the NPM may send copies of recommendations and comments to the Premier and a responsible Minister (s 18(4)), a politically salient escalation mechanism rather than a direct sanction.
Ministerial directions and compliance. A responsible Minister may give written directions to a detaining authority for the purposes of the Act, and the detaining authority must comply (s 37). That is an administrative enforcement lever to ensure operational compliance without court action.
Parliamentary oversight. The NPM may table reports in each House of Parliament (s 19(2)); Schedule 1 also embeds Parliament in processes for suspension and removal (Schedule 1 cl 8(2), cl 9). Public tabling and parliamentary addresses are political enforcement channels that can apply reputational and political pressure.
Liability shield and Crown assumption. Monitoring authorities acting in good faith are protected from action, liability, claim or demand (s 38(2)-(3)). Where civil liability would otherwise attach to a monitoring authority, it attaches instead to the Crown (s 38(4)). This shifts financial and litigation risk away from individuals or the NPM to the State.
Limits and evidentiary considerations
Privilege and disclosure. Although the NPM’s power to require information is broad, s 16(4) removes legal advice furnished to agencies as a ground for non‑compliance. However the Subcommittee’s access to information held by protected professionals is limited (s 32(4)), and if the responsible Minister or detaining authority provides such protected information to the Subcommittee the professional is not liable (s 32(5)).
Non‑compellability of NPM staff. The Act protects NPM staff from being compelled to disclose information in other proceedings (s 25(4)), which affects enforcement in judicial forums where such witnesses might otherwise be compelled.
Practical enforcement. Many enforcement levers are administrative, reputational or political (dialogue, referencing to Premier, tabling in Parliament, ministerial directions) rather than coercive. Criminal sanctions exist for obstruction, non‑compliance and reprisals, and fines provide civil financial penalties, but the Act’s architecture prioritises monitoring, reporting and dialogue.
In sum, enforcement combines statutory penalties for obstruction, non‑compliance and reprisals with administrative directions, referral powers and political escalation through the Premier and Parliament. Liability protection for monitoring authorities and Crown assumption of civil liability are notable features that allocate litigation risk to the State.
How it interacts with other laws
The Act expressly configures its relationship with other Tasmanian and Commonwealth laws in multiple places; those interactions shape how the NPM and Subcommittee operate within the existing statutory landscape.
Primacy over inconsistent laws
The Act provides an express override: “A provision of any other Act that prevents, or limits, the exercise of any function by a Tasmanian national preventive mechanism or the Subcommittee … has no effect or operation to the extent of any inconsistency with this Act” (s 7). That gives the Act precedence within the scope of any inconsistency, subject to constitutional limits on legislative competence. Mechanically, administrative rules, confidentiality provisions in other Acts, or statutory barriers that would otherwise inhibit NPM functions are displaced to the extent of inconsistency.
Exemptions and specific carve‑outs
Personal Information Protection Act 2004. Persons who are personal information custodians are not taken to have contravened that Act by collecting, using, disclosing or otherwise dealing with information in accordance with this Act (s 34). That is a specific statutory authorisation to override privacy constraints where necessary, reducing legal uncertainty for information handling by NPM and those complying with its requests.
Protected professionals. The Act limits Subcommittee access to certain protected professional information: registered health professionals, lawyers and other professionals acting under explicit confidentiality duties are excluded from being compelled to provide such information to the Subcommittee (s 32(4)). If a responsible Minister or detaining authority nonetheless provides such information to the Subcommittee, the professional is protected from liability (s 32(5)). This intersects with health privacy laws and legal professional privilege regimes by creating a specific exception and indemnity.
Privilege and legal advice
The Act narrows the use of legal advice as an excuse to withhold information required for an inspection: s 16(4) expressly states that a person is not excused from giving information, producing a record or answering a question on the ground that to do so would disclose legal advice furnished to an agency or instrumentality of the Tasmanian government or another authority to which the Act applies. This displaces common claims of privilege by agencies in inspection contexts under this Act.
Statutory oversight and accountability regimes
Ombudsman, Auditor‑General and other oversight bodies. The Act permits disclosure to and from the Ombudsman, Deputy Ombudsman, Auditor‑General and Deputy Auditor‑General (s 25(3)(c)-(d)), and allows the NPM to share information with the Commonwealth Ombudsman and other jurisdictional NPMs (ss 23; 25(3)(e)-(f)). That creates formal linkages among oversight bodies and may duplicate or complement existing oversight channels such as the Ombudsman Act 1978 and Audit Act 2008.
Interaction with State Service Act and Public Sector Superannuation. Staffing for the NPM is to operate under the State Service Act 2000 (s 12(1)-(3)); Schedule 1 cl 5(1-3) addresses remuneration and continuity of State Service employment; Schedule 1 cl 5(5) makes the NPM an employee for the purposes of the Public Sector Superannuation Reform Act 2016. These provisions integrate NPM staffing into existing public sector employment frameworks.
Commonwealth coordination and Attorney‑General arrangements
The Minister may enter into Ministerial arrangements with the Commonwealth Attorney‑General to facilitate exercise of Subcommittee functions in Tasmania (s 29). Those Ministerial arrangements may cover care and management of detainees, safety and security, access and disclosure of information, publication, privacy, special needs of vulnerable persons and public health risks. The Act thus creates a mechanism for cross‑jurisdictional operational rules that will sit alongside Commonwealth responsibilities in relation to the Subcommittee.
The Act contemplates the Commonwealth in two ways: (a) arrangements enabling the Subcommittee’s visits under Part 3 (s 29(5)), and (b) the National Preventive Mechanism Coordinator (the Commonwealth Ombudsman’s Office or another nominated body) to which annual reports must be provided (s 24).
Crown immunity and liability allocation
The Act binds the Crown (s 6) but also states that anything done in good faith by a monitoring authority does not make the monitoring authority subject to action, liability, claim or demand (s 38(2)). Civil liability that would attach to a monitoring authority attaches instead to the Crown (s 38(4)). This shifts liability into the existing Crown civil liability framework, influencing insurers, risk allocation and how private contractors or staff seconded to the NPM are protected.
Regulations and delegated rulemaking
The Governor may make regulations, including creating offences and setting penalties (s 39). Regulations may also authorise matters to be determined by the NPM or other specified persons or bodies (s 39(4)). This permits administrative detail and cross‑reference rules to be set outside the principal Act and integrated with other statutory frameworks.
Taken together, these provisions establish the NPM within the statutory ecosystem by giving the Act primacy on conflicts, carving out specific privacy and privilege treatments, embedding the NPM within State Service employment and superannuation frameworks, and providing routes for coordination with Commonwealth actors regarding visits by the UN Subcommittee.
Amendment history
The provided text does not record any prior amendments, commencement dates beyond proclamation, or history of legislative changes. The Act itself contains internal mechanisms that permit future change and administrative configuration:
Commencement. The Act commences on proclamation (s 2). The absence of a fixed commencement date means implementation depends on executive proclamation and the necessary administrative measures being put in place.
Delegated law-making. The Governor is empowered to make regulations for the purposes of the Act (s 39). Regulations may create offences, set penalties and delegate matters to the NPM or other persons (s 39(3)-(4)), providing a ready route for future operational adjustments without primary‑law amendment.
Administrative assignment. Until administrative arrangements are made under the Administrative Arrangements Act 1990, the Act’s administration is assigned to the Minister for Justice and the Department of Justice (s 40). That transitional assignment can be altered later by administrative arrangement orders under the Administrative Arrangements Act; such orders will affect which department is responsible for day‑to‑day implementation.
Schedule 1 governance. Schedule 1 sets terms, eligibility and removal/ suspension processes for the NPM and anticipates reappointment (Schedule 1 cl 4). The Schedule’s internal processes could be altered only by primary legislation amending the Act or by changes to appointment instruments within the scope expressed in Schedule 1.
Interaction with Commonwealth arrangements. The Minister may make Ministerial arrangements with the Commonwealth Attorney‑General (s 29). These arrangements can influence how the Act operates in practice without requiring legislative amendment.
Implications for future amendment
Operational detail will likely be supplied via regulations and Ministerial arrangements (s 29; s 39). Such delegated instruments can be amended more readily than the Act itself, permitting the executive to refine operational protocols, disclosure rules or inspection procedures after commencement.
The Act’s express override of inconsistent provisions (s 7) may reduce the need for amendment of other statutes, but if conflicts arise operationally between sectors (for example health privacy laws or correctional management rules), either side may require legislative amendment to harmonise practice.
Schedule 1’s appointment and removal mechanisms rely on Governor and parliamentary addresses for removal (Schedule 1 cl 8-9). Significant constitutional or governance adjustments to those processes would require amendment of the Schedule via primary legislation.
Because the source text contains no recorded amendment history or past legislative iterations, practitioners must assume the Act’s present wording is the operative law and that changes will be made through the statutory regulation power, Ministerial arrangements under s 29, or primary amendment by Parliament. The proclamation commencement requirement means there will be a defined lead time before the Act’s mechanisms become operational.
Litigation history
The Act text supplied contains no record of litigation, reported decisions, or judicial interpretation. There are no court cases named in the statute and no annotated history of judicial review. Accordingly, the statutory provisions remain to be tested in courts and tribunals in any disputed factual scenarios. The Act does, however, establish several legal touchpoints where litigation could arise in the future; the Act itself anticipates some of those contest points by allocating rights and immunities:
Statutory conflicts and constitutional limits. Section 7 gives the Act primacy over other Tasmanian Acts where inconsistent, but any dispute about the reach of that primacy could give rise to judicial proceedings, particularly where Commonwealth constitutional powers might be invoked. The text does not record case law on such issues.
Compellability and privilege. The Act narrows a typical legal ground for non‑compliance by stating explicitly that legal advice furnished to an agency is not a ground to refuse production under s 16(4). Challenges to that provision’s effect in particular discovery or inspection contexts may generate litigation about scope and application.
Ministerial arrangements and Subcommittee visits. The Act allows detaining authorities to prohibit or restrict Subcommittee access where grounds in Article 14(2) of the Optional Protocol may temporarily prevent a visit (s 31(2)-(3)), and contemplates requests to the Commonwealth Attorney‑General under Ministerial arrangements (s 29). Disputes about whether an Article 14(2) ground exists, whether a restriction is lawful, or whether an objection was properly made could be litigated, though the Act itself delegates some procedural detail to Ministerial arrangements.
Enforcement and penal provisions. Prosecutions under the Act’s offence provisions (ss 25-27; s 36) would produce litigation on elements such as “reasonable excuse”, “wilfully”, causation and whether disclosure fell within an exception. The Act does not provide further evidentiary or procedural rules beyond ordinary criminal process.
Administrative law challenges. Decisions by the Governor to suspend or appoint an NPM (Schedule 1) or decisions by responsible Ministers under s 37 issuing directions to detaining authorities could be reviewable by courts on administrative law grounds in appropriate circumstances. The Schedule provides procedures for suspension and removal; judicial review of those processes could occur if statutory requirements were alleged to be breached. The Act itself does not create an internal appeal mechanism beyond parliamentary involvement for removal.
Liability and indemnity. Section 38 shifts civil liability from monitoring authorities to the Crown and provides immunity for actions done in good faith. Litigation may arise about whether conduct was in good faith, or whether the Crown assumes particular liabilities. The Act’s allocation of risk will affect who is sued and what defences are available.
Because the source contains no cases, practitioners must treat these as potential litigation pathways rather than established lines of authority. Until courts authoritatively interpret the Act, many provisions , particularly those interacting with privilege, Crown immunity, and the scope of inspection powers , will be matters for administrative practice, policy development in Ministerial arrangements, and possibly litigation if contested.
Gotchas
This Act contains several operational and legal traps that can catch administrators, detaining authorities and professionals if not addressed proactively. These arise from the interplay of broad powers, narrow exceptions, confidentiality obligations, and administrative delegation.
Broad information powers with narrowed privilege defences
The NPM can require production of documents and information from any person relevant to an inspection (s 16(1)-(2)). The Act removes the ability to refuse on the ground that disclosure would reveal legal advice furnished to an agency or instrumentality (s 16(4)). Agencies that habitually rely on legal advice privilege as an absolute protection must rework procedures when responding to NPM notices.
Confusing overlap between disclosure exceptions and confidentiality offences
NPM staff are prohibited from disclosing information acquired in their official capacity except in enumerated circumstances (s 25(1)-(3)). At the same time, persons are protected when providing information in good faith (s 35). Practically, this requires careful handling: staff must follow permitted disclosure routes (e.g. to relevant authorities, Ombudsman, Auditor‑General, Subcommittee) to avoid breaching s 25, and individuals providing material must be able to rely on s 35 only when acting in good faith.
Protected professionals vs Ministerial disclosure choices
The Subcommittee cannot request information held by protected professionals in certain circumstances (s 32(4)). However, if a responsible Minister or detaining authority provides such protected information to the Subcommittee, the professional is indemnified (s 32(5)). This creates a situation where professional confidentiality may be overridden by executive decision; professionals and agencies should document the chain of authorisation carefully.
Delegation and independence tension
The NPM is mandated to be independent and impartial and have “complete discretion” in exercising functions (s 10). Yet the NPM may make arrangements with the Secretary of a department to have State Service staff made available (s 12(2)), and Schedule 1 contemplates an NPM holding office in conjunction with the Ombudsman (Schedule 1 cl 2(2)). Secondment of staff from departments that the NPM may investigate requires robust conflict‑management arrangements and adherence to the conflict‑of‑interest rules in s 12(4)(c) and Schedule 1 cl 6.
Ministerial directions and operational autonomy
A responsible Minister may give directions to any detaining authority for the purposes of the Act (s 37), and the detaining authority must comply. This can alter operational decision‑making during inspections or Subcommittee visits, especially where directions relate to safety, security or public health. Detaining authorities should have processes to document and justify compliance with ministerial directions.
Reprisal offence scope and employer actions
The reprisal provision (s 36) criminalises a wide range of retaliatory acts and carries heavy penalties. Employers must ensure internal disciplinary or managerial action is not reasonably construed as prejudicing a person who provided information to the NPM or Subcommittee; this will require training and careful HR processes.
Non‑compellability of NPM staff versus obligations to produce
The Act prevents compelling NPM staff to disclose information in other proceedings (s 25(4)). However, persons outside the NPM remain subject to production notices (s 16). Parties seeking disclosure should be mindful that key witness evidence in litigation may be sheltered from compulsion if held by NPM staff.
Schedule 1 eligibility constraints and political timing
A person who is a member or recent member (within 3 years) of Parliament cannot be appointed as the NPM (Schedule 1 cl 2(1)). The instrument of appointment sets remuneration and term (Schedule 1 cl 4-5). Political actors and agencies must be mindful of these constraints when selecting appointees.
Commencement and practical readiness
The Act commences by proclamation (s 2). Departments and agencies may face a gap between passage and commencement, during which regulations, staffing arrangements, Ministerial arrangements and procedures must be prepared. Failure to plan for the proclamation timeline may create a sudden compliance burden.
Reporting obligations and confidentiality of annual reports
The NPM must submit an annual report to the National Preventive Mechanism Coordinator within four months after 30 June (s 24(1)). The content includes evaluation of relevant authorities’ responses (s 24(2)(b)). Authorities should have mechanisms to track and respond to recommendations so the NPM can prepare accurate evaluations.
Recognising these “gotchas” ahead of operationalisation reduces the risk of non‑compliance, inadvertent breaches of confidentiality, improper obstruction, or governance failures that could trigger penal sanctions, political escalation or litigation.
How to comply
This section outlines concrete steps for the Tasmanian Government, detaining authorities, departments and professionals to meet statutory requirements and manage operational risk under the Act.
Governance and appointment logistics
Prepare instrument of appointment and remuneration details for the NPM consistent with Schedule 1 cl 4-5. Ensure candidate eligibility (Schedule 1 cl 2). Anticipate conflict‑of‑interest disclosure obligations (Schedule 1 cl 6(1)) and set up a process for written disclosure to the Governor and resolution plan.
Establish clear administrative assignment under s 40. If not immediately reallocated under the Administrative Arrangements Act, the Department of Justice will administer the Act; prepare for transition if administrative arrangements change.
Staffing, independence and conflicts
Make formal arrangements with Secretaries for State Service officers to be made available as staff under s 12(2). Document terms of secondment, reporting lines, confidentiality obligations and safeguards to preserve the NPM’s independence (s 10).
Screen staff for capability, professional knowledge, gender and diversity representation and conflicts of interest per s 12(4). Implement a process to notify the Secretary within 30 days of staff cessation (s 12(5)).
Operational readiness for inspections and interviews
Ensure all places of detention have procedures to facilitate unannounced and scheduled inspections as permitted under s 13(1). Train detaining authority staff and contractors on allowing access, providing reasonable assistance, and permitting photography and recordings when lawful (s 13(1)-(2)).
Create protocols for confidential detainee interviews consistent with s 15: permitting private interviews, providing interpreters where necessary, and protecting detainee correspondence with the NPM. Develop consent processes for detainee correspondence so that staff do not read, copy or remove such correspondence without detainee approval (s 15(2)(c)).
Information production and document handling
Prepare legal and operational guidance on responding to NPM notices under s 16. Recognise that legal advice furnished to an agency is not an excuse to refuse production (s 16(4)). Establish secure channels for transferring sensitive information to the NPM and record authorisations and chain of custody.
Map all information holdings relevant to detainees (numbers, treatment, conditions), and ensure rapid retrieval for inspection needs under s 16(2). For protected professional records, develop a protocol for when a responsible Minister or detaining authority is asked to provide such materials to the Subcommittee, documenting legal bases and indemnities (s 32(4)-(5)).
Recommendation handling and responsiveness
Create a formal process for entering into dialogue with the NPM when recommendations are made (s 18(2)). Assign a liaison officer to coordinate responses, compile an implementation plan, and provide notifications within specified times when requested by the NPM (s 18(3)).
Track the timeframe for “reasonable time” responses; be prepared to escalate explanations and corrective steps should recommendations be referred to the Premier and responsible Minister under s 18(4).
Ministerial arrangements and Subcommittee visits
If Subcommittee visits are anticipated, coordinate with the Attorney‑General of the Commonwealth to negotiate Ministerial arrangements permitted under s 29. Ensure arrangements address safety, security, information access, publication, privacy and special needs of vulnerable persons (s 29(2)(a)-(g)).
Develop procedures to manage temporary restrictions under Article 14(2) grounds when invoked by detaining authorities and to request the Commonwealth Attorney‑General to object if appropriate (s 31(2)).
Confidentiality, disclosure and staff obligations
Train NPM staff on s 25: the prohibitions on unauthorised disclosure, the permitted exceptions, and the offence elements and penalties. Implement strict recordkeeping and access controls to ensure disclosures occur only under s 25(2)-(3) exceptions.
For third parties providing information, inform them of protections under s 35 and ensure mechanisms to receive disclosures in good faith, including anonymous reporting channels where appropriate.
Reprisal prevention and HR policies
Implement anti‑reprisal policies and HR safeguards to ensure no employee is prejudiced for providing information to the NPM or Subcommittee (s 36). Train managers on the criminal risk and the need for objective documentation of any adverse workplace action to avoid the appearance of reprisal.
Legal preparedness and risk allocation
Ensure that monitoring authorities and staff are covered by the Crown indemnity arrangements contemplated by s 38. Update liability registers and insurance arrangements to reflect that civil liability arising from monitoring authority actions attaches to the Crown (s 38(4)).
Where legal privilege concerns arise, obtain specific legal advice that addresses the narrowed privilege available under s 16(4) and protected professional provisions under s 32.
Reporting and coordination
Prepare to submit the NPM annual report to the National Preventive Mechanism Coordinator within four months after 30 June each year (s 24(1)). Build systems to compile: (a) a description of activities, (b) evaluation of relevant authorities’ responses to recommendations, and (c) suggestions for legal or administrative changes (s 24(2)(a)-(c)).
Establish regular communication channels with the National Preventive Mechanism Coordinator, Commonwealth Ombudsman, State Ombudsman and Audit Office for coordinated oversight and information sharing (ss 23; 25(3)).
Regulatory and legislative monitoring
Monitor for any regulations made under s 39 and for Ministerial arrangements under s 29. Ensure internal policies are updated when regulations or arrangements come into force, and maintain a compliance review schedule.
Practical checklist for detaining authorities
Nominate a responsible Secretary and liaison for NPM interactions.
Audit records and information systems for rapid response to production notices.
Prepare secure interview spaces and interpreter arrangements.
Train custodial staff and contractors on access and non‑obstruction obligations.
Implement a documentation trail for any restriction or objection to Subcommittee access under Article 14(2) grounds and Ministerial arrangements.
Following these concrete steps and aligning operational protocols to the Act’s express provisions will reduce exposure to penalties, protect vulnerable individuals, and support effective cooperation with the NPM and the Subcommittee.
Ministerial arrangement means an arrangement entered into under section 29 ;
national preventive mechanism has the meaning that it has in the Optional Protocol;
National Preventive Mechanism Coordinator means the Office of the Commonwealth Ombudsman established by the Ombudsman Act 1976 of the Commonwealth or another body nominated from time to time as the National Preventive Mechanism Coordinator for Australia in relation to the Optional Protocol;
Optional Protocol means the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 18 December 2002, as amended and in force for Australia from time to time;
place of detention – see section 5 ;
public authority has the meaning that it has in the Ombudsman Act 1978 ;
relevant authority means the following persons and bodies:
(a) the responsible Secretary;
(b) a detaining authority;
(c) a public authority;
(d) a person or body, or class of persons or bodies, prescribed for the purposes of this definition;
responsible Minister, in relation to a place of detention, means a Minister administering an Act, or portion of an Act, conferring functions on, or regulating the exercise of functions by, a detaining authority for that place of detention;
responsible Secretary means –
(a) the Secretary responsible for a place of detention; or
(b) in the case of the Department of Police, Fire and Emergency Management, the Commissioner of Police; or
(c) in the case of services provided in a place of detention, the Secretary of the department responsible for the provision of those services;
Secretary means the Secretary of the Department;
staff, in relation to a Tasmanian national preventive mechanism, means a person who is appointed, employed or made available under section 12 and includes a person to whom a function is delegated in accordance with section 11 ;
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;
Tasmanian national preventive mechanism means a person appointed under section 8 .
(2) For the purposes of this Act, an entity or person engaged by or on behalf of a detaining authority or the State to provide services under a contract as, or on behalf of, a detaining authority is taken to be a detaining authority.
5 Meaning of place of detention
5 Meaning of place of detention
(1) In this section –
closed psychiatric facility means the following facilities within the meaning of the Mental Health Act 2013 :
(a) an approved facility;
(b) a secure institution.
(2) In this Act, a place of detention is any place, subject to the jurisdiction and control of Tasmania, that the Subcommittee must be allowed to visit under Article 4 of the Optional Protocol.
(3) Without limiting subsection (2) , each of the following places that are subject to the jurisdiction and control of Tasmania and in which persons are deprived of their liberty is a place of detention for the purposes of this Act:
(a) a correctional centre, prison, detention centre or other similar place (however described);
(b) a hospital or other similar place;
(c) a closed psychiatric facility;
(d) a police station or court cell complex;
(e) a vehicle used or operated to convey detainees;
(f) a place prescribed for the purposes of this section.
6 Act binds Crown
6 Act binds Crown
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
7 Relationship to other laws
7 Relationship to other laws
A provision of any other Act that prevents, or limits, the exercise of any function by a Tasmanian national preventive mechanism or the Subcommittee, with respect to a detainee or place of detention in accordance with this Act, has no effect or operation to the extent of any inconsistency with this Act.
Part 2 Tasmanian National Preventive Mechanism
Part 2 Tasmanian National Preventive Mechanism
Division 1 Appointment, functions and staffing
Division 1 Appointment, functions and staffing
8 Tasmanian national preventive mechanism
8 Tasmanian national preventive mechanism
(1) The Governor may appoint a person, or more than one person, as a Tasmanian national preventive mechanism.
(2) Schedule 1 has effect with respect to a Tasmanian national preventive mechanism and his or her appointment.
9 Functions
9 Functions
(1) A Tasmanian national preventive mechanism has the following functions:
(a) to regularly examine the treatment of persons deprived of their liberty in places of detention with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;
(b) to require the provision of, or access to, or to copy and retain copies of, information held by any person concerning –
(i) detainees, including the number and treatment of such detainees and the conditions of their detention; and
(ii) places of detention, including the number of such places and their location;
(c) to access, inspect and review places of detention in accordance with section 13 ;
(d) to interview detainees, and any other persons whom he or she believes may supply relevant information, in accordance with Article 20(d) of the Optional Protocol;
(e) to have contact, meet and exchange any information obtained in accordance with this Act with the Subcommittee and a national preventive mechanism of any other Australian jurisdiction;
(f) to refer matters relating to a detainee or place of detention to an appropriate agency for consideration or action;
(g) to receive information from any person, body or agency in relation to a detainee or place of detention;
(h) to make recommendations, and provide advice, to the relevant authorities with the aim of improving the treatment and the conditions of persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;
(i) to develop and publish guidelines and standards in respect of detainees or places of detention;
(j) to submit proposals and observations concerning existing or draft legislation that relates to detainees or places of detention;
(k) to publish reports, recommendations, advice or findings in relation to detainees or places of detention;
(l) to engage in consultation in relation to policy relating to detainees or places of detention with a responsible Secretary or a responsible Minister;
(m) such other functions as may be conferred or imposed on a Tasmanian national preventive mechanism under this or any other Act;
(n) to do all things necessary or convenient to be done in connection with, or incidental to, the exercise of his or her functions.
(2) A Tasmanian national preventive mechanism may from time to time amend the guidelines and standards developed and published under subsection (1) .
10 Independence
10 Independence
In exercising functions under this Act, a Tasmanian national preventive mechanism, a person to whom functions have been delegated under section 11 and any staff of a Tasmanian national preventive mechanism appointed, employed or made available under section 12 , are authorised and required to act independently and impartially, and have complete discretion in the exercise of those functions.
11 Delegation
11 Delegation
A Tasmanian national preventive mechanism may delegate any of his or her functions under this Act, other than this power of delegation, to any person or body that is, in the opinion of the Tasmanian national preventive mechanism, competent to perform that function.
12 Staff
12 Staff
(1) Subject to and in accordance with the State Service Act 2000 , a person may be appointed or employed for the purposes of enabling a Tasmanian national preventive mechanism to exercise his or her functions under this Act.
(2) A Tasmanian national preventive mechanism may make arrangements with the Secretary of a department for State Service officers and State Service employees employed in the department to be made available to enable a Tasmanian national preventive mechanism to exercise his or her functions under this Act.
(3) A State Service officer or State Service employee made available under subsection (2) may serve a Tasmanian national preventive mechanism in any capacity in conjunction with State Service employment.
(4) In appointing or employing staff, or making arrangements for staff to be made available under this section, a Tasmanian national preventive mechanism is to take into consideration –
(a) whether the staff have the required capabilities and professional knowledge required to undertake their duties; and
(b) whether the staff adequately represent a balance of gender, and of people identifying as belonging to diverse groups, including the following groups:
(i) cultural and ethnic groups, including people who identify as Aboriginal or Torres Strait Islander;
(ii) people living with disability; and
(c) whether the staff have a conflict of interest in relation to the purposes of this Act.
(5) If a person ceases to be staff of a Tasmanian national preventive mechanism, the Tasmanian national preventive mechanism is to notify the Secretary of that cessation within 30 days after its occurrence.
Division 2 Inspections
Division 2 Inspections
13 Inspection of place of detention
13 Inspection of place of detention
(1) A Tasmanian national preventive mechanism may access, inspect and review any place of detention, aspect of a place of detention or any equipment or facilities used in connection with a place of detention –
(a) at any time and on as many occasions as he or she thinks fit; and
(b) with or without notice; and
(c) with any assistance or equipment that he or she thinks is reasonably necessary.
(2) A Tasmanian national preventive mechanism and any member of staff of a Tasmanian national preventive mechanism may take such photographs, films or audio or visual recordings as he or she considers necessary to perform his or her functions.
(3) A Tasmanian national preventive mechanism may publish a schedule of the dates and locations at which he or she intends to carry out inspections under this section.
14 Identification
14 Identification
(1) A Tasmanian national preventive mechanism is to issue to himself or herself, and each member of staff of the Tasmanian national preventive mechanism, an identity card.
(2) An identity card must contain at least the name and a recent photograph of the person to whom it is issued.
(3) A Tasmanian national preventive mechanism, and a member of staff of a Tasmanian national preventive mechanism, when exercising his or her functions under this Act, is to allow a detainee or member of staff of a place of detention to inspect his or her identity card.
(4) When a person ceases for any reason to be a member of staff of a Tasmanian national preventive mechanism, the Tasmanian national preventive mechanism is to take reasonable measures to retrieve the person's identity card or ensure that it has been properly disposed of.
15 Access to persons
15 Access to persons
(1) A Tasmanian national preventive mechanism is entitled to have access to a detainee at all times.
(2) The person in charge of a place of detention, each member of the staff of a place of detention and any person providing services in a place of detention –
(a) must allow a Tasmanian national preventive mechanism to conduct an interview with a detainee, out of the hearing of any other person; and
(b) must allow a Tasmanian national preventive mechanism to be accompanied by an interpreter in conducting an interview with a detainee if deemed necessary by the Tasmanian national preventive mechanism; and
(c) must not, without the approval of the detainee, read, copy or remove any correspondence –
(i) from a detainee to a Tasmanian national preventive mechanism; or
(ii) from a Tasmanian national preventive mechanism to a detainee.
16 Requiring of documents &c.
16 Requiring of documents &c.
(1) A Tasmanian national preventive mechanism may, by notice served on a person, require that person to produce to –
(a) the Tasmanian national preventive mechanism; or
(b) a person designated by the Tasmanian national preventive mechanism –
any information, document or thing in that person's possession or control that the Tasmanian national preventive mechanism considers relevant to an inspection carried out under section 13 .
(2) Information required to be produced under subsection (1)
This is an opening excerpt, not the complete document.