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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-28 Daily Xml
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OPCAT Implementation Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:07): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I am pleased to introduce the OPCAT Implementation Bill 2021 (‘the Bill’).

The Australian Government ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on 21 December 2017. The Optional Protocol is known as OPCAT.

The Bill creates a new standalone Act, ‘the OPCAT Implementation Act’ to give effect to South Australia’s international obligations under OPCAT.

In implementing OPCAT State Parties are required to establish one or more independent National Preventive Mechanisms or NPMs. NPMs conduct regular and unannounced inspections of places of detention and closed environments where people are deprived of their liberty.

State Parties are also obliged to facilitate international expert visits to domestic places of detention from the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Australian Government is the State Party for Australia. Australia is required to have implemented OPCAT, including the establishment of the NPMs by 20 January 2022.

The approach being taken to the implementation of the NPM obligation is a mixed model approach comprised of a network of inspectorate bodies across the Commonwealth, States and Territories which will be supported by a national coordinating mechanism, known as the NPM Coordinator.

The Australian Government has nominated the Office of the Commonwealth Ombudsman as the NPM Coordinator. In addition, the Commonwealth Ombudsman has also been designated as the NPM for inspecting Commonwealth places of detention. This includes military detention facilities, immigration detention facilities and Australian Federal Police cells.

Mr President, the Australian Government has taken the view that the implementation of OPCAT will initially focus on ‘primary places of detention’, being:

adult prisons;

juvenile detention facilities (excluding residential secure facilities);

police lock-ups or police station cells (where people are held for 24 hours or more);

closed facilities or units where people may be involuntarily detained by law for mental health assessment or treatment (where people are held for 24 hours or more);

closed forensic disability facilities or units (where people are held for 24 hours or more);

immigration detention centres; and

military detention facilities.

In accordance with this approach, the Bill designates an NPM or NPMs for each of the primary places of detention.

The NPMs for correctional institutions will be the Official Visitors, as provided for in the Correctional Services (Accountability and Other Measures) Amendment Act 2021. There will also be an Official Visitor appointed as the NPM for prescribed custodial police stations.

The NPM for training centres will be the Training Centre Visitor under the Youth Justice Administration Act 2016;

The NPM for prescribed mental health facilities will be the Principal Community Visitor, under the Mental Health Act 2009.

The Government recognises that, while the implementation of OPCAT will initially focus on primary places of detention, the implementation will be an iterative process. Additional places of detention will likely be included as the scheme evolves over time. This is similar to the approach taken by New Zealand when it implemented OPCAT in 2007.

In relation to both prescribed mental health facilities and custodial police facilities, the facilities that fall within scope are to be prescribed by regulation.

It is the government’s intention that the prescribed facilities for police facilities will include lock-up or police station cells where people are held for 24 hours or more. There are 19 facilities that are to be prescribed.

The prescribed facilities for mental health facilities will include closed facilities or units where people may be involuntarily detained for 24 hours or more for mental health assessment or treatment. There are 18 facilities that are to be prescribed.

The primary function of an NPM under OPCAT is to undertake regular and unannounced inspections of places of detention, including their installations and facilities. The purpose of the inspections is to examine the conditions and treatment of persons deprived of their liberty.

NPM functions are directed toward preventing ill-treatment and other human rights abuses from occurring. This is to be distinguished from the other existing inspectorate bodies which exercise complaints and advocacy functions.

In recognition of this mandate, the Bill makes related amendments to the Mental Health Act, Youth Justice Administration Act and Police Act, to provide for the specific powers and functions of the NPMs, including:

to carry out regular and unannounced inspections of places of detention;

to conduct interviews with detainees and to make inquiries about the detention of detainees;

to require persons to answer relevant questions or produce relevant documents relevant to the NPM’s functions; and

to make reports and recommendations relating to the detention of people and for those reports to be tabled in Parliament.

In addition, the Bill provides for the independence of the NPMs and requires them to be provided with such resources as are reasonably required for the NPMs to exercise their functions effectively under OPCAT.

For the Training Centre Visitor and the Principal Community Visitor, the Bill sets out NPM powers and functions that are separate to the existing powers and functions of those inspectorate bodies.

This has been done with a view to creating a clear legislative distinction between the existing powers and functions of those inspectorate bodies and their new NPM functions and powers. A similar approach has been taken with respect to the NPM for prescribed custodial police stations.

The Bill takes a different approach in respect of the Official Visitors Scheme in its role as the NPM for correctional institutions. For correctional institutions, the Bill provides that the powers and functions of the NPM are as set out in the Correctional Services (Accountability and Other Measures) Amendment Act 2021. The Government has taken this approach in recognition of the fact that the Official Visitors Scheme is a new scheme which has been specifically developed with the intention that it would be designated as an NPM under OPCAT.

Mr President, keeping our laws current and relevant is one of the Marshall Liberal Government’s key justice priorities. These reforms represent a unique opportunity to improve and strengthen independent oversight and monitoring of places of detention.

The Bill will support the establishment of robust methods of preventative inspection and reporting to ensuring that we have appropriate conditions and standards of care for people who are deprived of their liberty, who are some of the most vulnerable members of our community.

Mr President, I commend the Bill to Members and I seek leave to insert the Explanation of Clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Interpretation

These clauses are formal.

4—Application of Act

This clause clarifies the relationships between this and certain other Acts.

Part 2—National Preventive Mechanisms

5—National Preventive Mechanisms for specified places of detention

This clause sets out who the NPM is for the various categories of places of detention.

6—Independence of NPMs

This clause provides for NPMs to be independent of any direction or control of government.

7—Functions and powers of NPMs

This clause sets out the functions and powers of NPMs under the measure (including those set out in Schedules to the various Acts by Schedule 1 of this Act).

8—Delegation

This clause is a standard power of delegation.

9—NPMs may disclose information to other NPMs and NPM Coordinator

This clause permits an NPM to disclose information obtained in the course of performing their functions or exercising their powers to another NPM or to the NPM Coordinator (or both).

10—Referral of matters to inquiry agencies etc not affected

This clause clarifies that the ability of an NPM to refer a matter to certain investigative and other agencies is not affected by this measure.

Part 3—Reporting

11—Annual reporting by NPMs

This clause is a standard annual reporting requirement for NPMs.

12—NPMs may prepare additional reports

This clause allows an NPM to prepare additional reports for the Minister responsible for the NPM.

Part 4—Miscellaneous

13—Confidentiality

This clause is a standard confidentiality provision preventing disclosure of personal information except in the circumstances specified in the clause.

14—Victimisation

This clause is a standard victimisation clause protecting people who provide information to an NPM.

15—Obstruction etc

This clause creates an offence for a person to obstruct, hinder, resist or improperly influence an NPM in the performance of a function, or exercise of a power, or to attempt to do so.

16—False or misleading statements

This clause creates an offence for a person to knowingly make a false or misleading statement in information provided to an NPM.

17—Protections, privileges and immunities

This clause confers protections from liability on people who answer questions, produce information or otherwise do things in accordance with the Act.

18—Review of Act

This clause requires the Minister to cause a review of the Act to be undertaken before the fifth anniversary of its commencement.

19—Regulations

This clause is a standard regulation making power.

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Mental Health Act 2009

2—Amendment of section 106—Confidentiality and disclosure of information

This clause amends section 106 of the principal Act consequent upon this measure.

3—Insertion of Schedule 1A

This clause inserts new Schedule 1A into the principal Act, setting out measures (including the functions and powers of the NPM) relating to the role of the NPM under the principal Act.

Part 3—Amendment of Police Act 1998

4—Insertion of Schedule 1A

This clause inserts new Schedule 1A into the principal Act, setting out measures (including the functions and powers of the NPM) relating to the role of the NPM under the principal Act.

Part 4—Amendment of Youth Justice Administration Act 2016

5—Amendment of section 49—Confidentiality

This clause amends section 49 of the principal Act consequent upon this measure.

6—Insertion of Schedule 1

This clause inserts new Schedule 1 into the principal Act, setting out measures (including the functions and powers of the NPM) relating to the role of the NPM under the principal Act.

Debate adjourned on motion of Hon. I.K. Hunter.

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