Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 1A ACT National Preventive Mechanism
Division 1A.1 Preliminary
8A Object—pt 1A
The object of this part is to enable the NPM to be established and maintained to fulfil the mandate set out in the Optional Protocol, part IV.
8B Definitions—pt 1A
In this part:
"Commonwealth Ombudsman" means the person appointed under the Ombudsman Act 1976
(Cwlth), section 21.
"custodial inspector" means the custodial inspector appointed under the Custodial Inspector Act 2017
"investigative entity "means an entity with power to require the production of documents or the answering of questions including, for example, the chief police officer, the human rights commission, the ombudsman, the custodial inspector and the integrity commissioner.
"NPM coordinator" means the Commonwealth Ombudsman or another entity on which the function of the National Preventive Mechanism Coordinator is conferred from time to time.
Note See the Ombudsman Regulations 2017
(Cwlth), s 17 (1).
"staff of the NPM" means—
(a) any public servant or person mentioned in section 8G; and
(b) any consultants and contractors engaged under section 8H.
Division 1A.2 Establishment and functions of NPM
8C ACT National Preventive Mechanism established
(1) The ACT National Preventive Mechanism is established.
(2) The NPM is comprised of each entity prescribed by regulation.
8D Functions of the NPM
The NPM has the following functions:
(a) to improve the treatment and conditions of detainees in places of detention, and to strengthen the protection of detainees against torture and other cruel, inhuman or degrading treatment or punishment, by doing the following:
(i) examining the treatment of detainees in places of detention;
(ii) making recommendations and observations to responsible entities for places of detention;
(iii) submitting proposals and observations concerning existing or draft legislation that relates to detainees or places of detention;
(b) any other function given to the NPM under this Act or another territory law.
8E Functions of the NPM—guidelines
(1) The NPM must make guidelines about the way in which it exercises its functions.
(2) The guidelines must be consistent with, and reasonably appropriate and adapted for implementing, the Optional Protocol.
(3) The guidelines must provide for procedures of the NPM, including—
(a) how the NPM identifies matters that require particular care or sensitivity when carrying out an examination of the treatment of detainees in places of detention or in a particular place of detention; and
(b) how the NPM works with the NPM coordinator, the subcommittee and investigative entities; and
(c) anything else prescribed by regulation.
(4) The guidelines may include any other procedures of the NPM, including how the NPM works with responsible entities for places of detention to improve the treatment and conditions of detainees in places of detention.
(5) Before making the guidelines, the NPM must—
(a) consult with the responsible directors-general for each place of detention and the chief police officer; and
(b) consider any recommendations or advice received during the consultation undertaken under paragraph (a).
(6) The guidelines are a notifiable instrument.
(7) The guidelines must be made available on the NPM's website.
8F Independence of NPM
(1) The NPM is not subject to the direction of anyone else in relation to the exercise of a function under this Act.
(2) Staff of the NPM, in relation to the exercise of a function under this Act, are not subject to the direction of anyone except—
(a) the NPM; or
(b) another member of staff of the NPM who is authorised by the NPM to give the direction.
(3) No-one may require the NPM or staff of the NPM to act other than independently and impartially in the exercise of a function under this Act.
8G Arrangements for staff
The NPM may arrange with the head of service to use the services of the following:
(a) a public servant;
(b) a person prescribed by regulation.
8H Consultants and contractors
(1) The NPM may engage consultants and contractors.
(2) However, the NPM must not enter into a contract of employment under this section.
8I Delegation
The NPM may delegate a function under this Act to a member of staff of the NPM.
Note For laws about delegations, see the Legislation Act
, pt 19.4.
Division 1A.3 Examination of treatment of detainees in places of detention
8J Inspection of place of detention
(1) In examining the treatment of detainees in a place of detention, the NPM may, at any time, visit a place of detention to inspect the place of detention.
(2) The NPM may, but need not, give the detaining authority for the place of detention notice of a visit.
(3) The NPM may give notice of a visit by making a schedule of the dates on which it intends to visit a place of detention publicly available.
(4) The NPM may, in visiting a place of detention, take into the place any equipment reasonably required to effectively carry out an inspection of the place.
Examples—equipment reasonably required
1 a recording device
2 a camera
8K Access to place of detention and things in place of detention
(1) This section applies if the NPM visits a place of detention to inspect the place of detention.
(2) A responsible entity for a place of detention must ensure that the NPM is given unrestricted access to the following:
(a) all parts of the place of detention;
(b) any vehicle or equipment used in the place of detention;
(c) all documents or other things in the place of detention that the NPM reasonably believes it requires access to in examining the treatment of detainees in the place.
(3) However, a responsible entity for the place of detention may refuse access by the NPM to all or part of a place of detention—
(a) on 1 or more of the following grounds:
(i) national security;
(ii) a risk to public safety;
(iii) a natural disaster;
(iv) a serious disorder in the place of detention; and
(b) only if the circumstances of the grounds mentioned in paragraph (a)—
(i) are urgent and compelling; and
(ii) temporarily prevent access by the NPM.
(4) The existence of a state of emergency is not in itself a reason for a refusal under subsection (3).
(5) A refusal under subsection (3) must—
(a) be made in writing; and
(b) include a statement of reasons for the refusal; and
(c) if practicable and reasonable, set out when the access will be allowed.
(6) In this section:
"state of emergency" means—
(a) a state of emergency declared under the Emergencies Act 2004
, section 156; or
(b) an emergency declared under the Public Health Act 1997
, section 119.
8L Access to detainees and other people
(1) In examining the treatment of detainees in a place of detention, the NPM may, either personally or through an interpreter, speak to, or privately interview, any detainee or other person in the place.
(2) However, a detainee or other person has a right to refuse to speak to, or be privately interviewed by, the NPM.
(3) A responsible entity for the place of detention must ensure that the NPM is—
(a) given reasonable assistance to speak to, or privately interview, a detainee or other person; and
(b) able to speak to, or privately interview, a detainee or other person at any time.
(4) A support person nominated by a detainee or other person may be present during the interview at their request and with the agreement of the NPM.
(5) No responsible entity may, without the approval of the detainee or other person, read, copy or remove any correspondence—
(a) from a detainee or other person to the NPM; or
(b) from the NPM to the detainee or other person.
(6) In this section:
"privately interview" means speaking with a person without the presence of any other person and without audio surveillance by electronic or other means.
8M Access to information, documents and other things
(1) This section applies if the NPM believes on reasonable grounds that an entity can provide information or produce a document or something else relevant to its examination of the treatment of detainees in a place of detention.
Examples—information relevant to examination of the treatment of detainees
1 the number of detainees in a place of detention
2 the conditions of detention applying to detainees
3 the number or location of places of detention
(2) The NPM may, by written notice given to the entity, require the entity to provide the information or produce the document or other thing.
(3) The Territory must not prevent or obstruct the provision of the information or the production of the document or other thing under this section, even if the Territory would be entitled to do so if the examination were a legal proceeding.
8N Anyone may provide information, documents and other things
An entity that has information, a document or something else it believes is relevant to the NPM's examination of the treatment of detainees in a place of detention may provide or produce it to the NPM on its own initiative at any time.
Examples—entity
2 an investigative entity
3 the subcommittee
4 the NPM coordinator
5 an entity that exercises a function under a law of a State, corresponding or substantially corresponding to a function of the NPM
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
8O NPM may keep document or other thing
(1) If a document or something else is given to the NPM under section 8M or section 8N, the NPM may, for a period that is necessary for the NPM's consideration to which the document or thing relates—
(a) take possession of, make copies of, or take extracts from, the document or take possession of the thing; and
(b) keep the document or thing.
(2) During the period mentioned in subsection (1), the NPM must allow anyone who would be entitled to inspect the document or thing, if it were not in the possession of the NPM, to inspect it and, for a document, make copies of, or take extracts from, it.
(3) At the end of the period mentioned in subsection (1), the NPM must return a document or thing.
Division 1A.4 Recommendations and reporting about treatment of detainees in places of detention
8P Treatment of detainees in places of detention—recommendations and observations
Following an examination of the treatment of detainees in a place of detention under division 1A.3, the NPM may make a recommendation or observation—
(a) to any entity the NPM considers appropriate to respond to the recommendation or observation made; and
(b) in a way the NPM considers appropriate.
8Q Treatment of detainees in places of detention—preparation of report
(1) Following an examination of the treatment of detainees in a place of detention under division 1A.3, the NPM may prepare a report about the following:
(a) the examination;
(b) any recommendation or observation made under section 8P in relation to the examination;
(c) any steps that have been or are proposed to be taken in relation to the recommendation or observation made under section 8P.
(2) The NPM may give a copy of the draft report to any responsible entity for the place of detention.
(3) If the NPM gives a copy of the draft report to a responsible entity, the NPM—
(a) may invite the entity to give comments on the copy of the draft report within a reasonable period; and
(b) must consider any comments given by the entity under paragraph (a).
(4) The NPM may also give a copy of the draft report or a copy of part of the draft report to any other entity the NPM is satisfied has a direct interest in the draft report.
(5) However, if the NPM gives a copy of the draft report or a copy of part of the draft report to an entity that is a non-public sector entity under subsection (4), the NPM must first do the things mentioned in subsections (2) and (3) with—
(a) each responsible entity mentioned in the report; and
(b) each responsible entity that is, or is likely to be, directly affected by the report; and
(c) any other responsible entity prescribed by regulation.
Note Power to make a regulation includes power to make different provision in relation to different matters or different classes of matters, and to make a regulation that applies differently by reference to stated exceptions or factors (see Legislation Act
, s 48).
(6) In this section:
"non-public sector entity"—see the Auditor-General Act 1996
, section 13B.
8R Treatment of detainees in places of detention—publication etc of final report
(1) The NPM may do the following with a report prepared under section 8Q:
(a) give the report to a responsible entity for the place of detention mentioned in the report;
(b) publish the report;
(c) give the report to the Speaker to table in the Legislative Assembly;
(d) give the report to any other entity.
(2) However, before the NPM does a thing mentioned in subsection (1) (b), (c) or (d), the NPM must do the things mentioned in section 8Q (2) and (3) with—
(a) each responsible entity mentioned in the report; and
(b) each responsible entity that is, or is likely to be, directly affected by the report; and
(c) any other responsible entity prescribed by regulation.
Note If the report contains an adverse comment in relation to an entity the NPM must also give the entity a reasonable opportunity to respond to the proposed comment (see s 8V).
(3) If the Legislative Assembly is sitting when the NPM gives a report to the Speaker, the Speaker must present the report to the Legislative Assembly within 5 sitting days after receiving the report.
(4) If the Legislative Assembly is not sitting when the NPM gives the report to the Speaker—
(a) the report is taken to have been presented to the Legislative Assembly on the day the NPM gives it to the Speaker (the report day ); and
(b) the Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the report day; and
(c) the Speaker must present the report to the Legislative Assembly—
(i) on the next sitting day; or
(ii) if the next sitting day is the first meeting of the Legislative Assembly after a general election of members of the Assembly—on the second sitting day after the election.
(5) In this section:
"Speaker" includes—
(a) if the Speaker is unavailable—the Deputy Speaker; and
(b) if both the Speaker and Deputy Speaker are unavailable—the clerk of the Legislative Assembly.
"unavailable—"the Speaker or Deputy Speaker is "unavailable" if—
(a) they are absent from duty; or
(b) there is a vacancy in the office of Speaker or Deputy Speaker.
Division 1A.5 Information secrecy and sharing
8S Secrecy
(1) A person to whom this section applies commits an offence if—
(a) the person—
(i) makes a record of protected information about someone else; and
(ii) is reckless about whether the information is protected information about someone else; or
(b) the person—
(i) does something that discloses protected information about someone else; and
(ii) is reckless about whether—
(A) the information is protected information about someone else; and
(B) doing the thing would result in the information being disclosed to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) Subsection (1) (a) does not apply if the record of protected information about the person is made—
(a) with the person's consent; or
(b) under this Act or another territory law; or
(c) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.
(3) Subsection (1) (b) does not apply if the protected information about the person is disclosed—
(a) with the person's consent; or
(b) under this Act or another territory law; or
(c) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law; or
(d) for protected information that is information other than identifying information—to a permitted information recipient; or
(e) for protected information that is identifying information—
(i) to a permitted information recipient; and
(ii) by the NPM or a member of staff of the NPM; and
(iii) in circumstances where the NPM is satisfied the disclosure is necessary and reasonable in the public interest.
(4) A person to whom this section applies must not publish protected information about a person that is identifying information about the person.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5) Subsection (4) does not apply if the protected information about the person is published with the person's consent.
(6) A person to whom this section applies must not be compelled to disclose protected information to a court or produce a document containing protected information to a court.
(7) In this section:
"court" includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
"identifying information", about a person, means information that—
(a) identifies the person; or
(b) allows the person's identity to be worked out.
"permitted information recipient" means—
(a) a responsible entity; or
(b) the subcommittee; or
(c) the NPM coordinator; or
(d) an entity that exercises a function under a law of a State, corresponding or substantially corresponding to a function of the NPM.
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
"person to whom this section applies" means a person who exercises, or has exercised, a function under this Act.
"protected information" means information about a person that is disclosed to, or obtained by, the NPM because of the exercise of a function by the NPM or a member of staff of the NPM under this Act.
8T Laws preventing etc providing information, documents and other things do not apply
(1) This section applies if an entity provides information or produces a document or something else to the NPM because they believe it is relevant to the exercise of the NPM's functions.
(2) A provision of another territory law that prevents or limits the provision of the information or the production of the document or thing has no effect.
8U Referral to investigative entity
(1) This section applies if the NPM reasonably believes that a matter raised by, or in the course of, the exercise of its functions can be more appropriately dealt with by another investigative entity or an official visitor.
(2) The NPM may decide to refer the matter together with any relevant documents, information or other things in the NPM's possession or control, to an investigative entity or an official visitor.
(3) However, the referral must not include identifying information about an individual unless—
(a) the individual has given consent; or
(b) the NPM is satisfied that referring the matter is necessary and reasonable in the public interest.
(4) Nothing in this section requires the investigative entity or official visitor to deal with the referred matter.
(5) The NPM may enter into arrangements with an investigative entity or an official visitor about the referral of matters under this section.
(6) In this section:
"identifying information"—see section 8S (7).
"matter" includes part of a matter.
8V Publishing etc adverse comment
(1) The NPM must not publish an adverse comment in relation to an entity, unless the NPM has given the entity a reasonable opportunity to respond, orally or in writing, to the proposed comment.
(2) The NPM must also not do a thing mentioned in section 8R (1) (Treatment of detainees in places of detention—publication etc of final report) in relation to a report that contains an adverse comment in relation to an entity, unless the NPM has given the entity a reasonable opportunity to respond, orally or in writing, to the proposed comment.
Division 1A.6 Miscellaneous
8W Identification of NPM
In exercising a function under this Act in relation to a person, the NPM must, as far as it is practicable and reasonable, make it clear to the person that the function is being exercised by the NPM under this Act.
8X Review—pt 1A
(1) The Minister must review the operation of this part as soon as practicable after the end of its 2nd year of operation.
(2) The Minister must present a report of the review to the Legislative Assembly within 12 months after the day the review is started.
(3) This section expires 5 years after the day it commences.