Thursday, 1 September 2022

Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022

Introduction and first reading

The PRESIDENT (17:35): I have another message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to facilitate visits to places of detention and access to information by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in accordance with the Subcommittee’s mandate under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and for other purposes’.

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:35): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms SHING: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:35): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022.

In my opinion, the Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. The Bill is protective of rights set out in the Charter and engages, but does not limit, rights in the Charter of Human Rights and Responsibilities.

I base my opinion on the reasons outlined in this statement.

Overview

The Bill will facilitate inspections of places of detention by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Subcommittee) for the purpose of the Subcommittee’s mandate under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).

To enable the Subcommittee to perform its inspections independently and in full, the Bill requires that a responsible Minister and a detaining authority must permit the Subcommittee:

• access to, and unrestricted access within, a place of detention; and

• access to all relevant information, including personal and health information.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The Bill engages several rights under the Charter.

By establishing a legal framework to facilitate OPCAT inspections by the Subcommittee, the Bill promotes the following human rights:

• recognition and equality before the law (section 8)—by ensuring that every person, including a detained person, has the right to enjoy their human rights without discrimination; and

• Protection from torture and cruel, inhuman or degrading treatment (section 10) and humane treatment when deprived of liberty (section 22)—by ensuring the Subcommittee may inspect and provide assurance regarding the treatment and conditions of detained persons.

Human rights engaged by the Charter that are relevant to the Bill

The Bill engages the Charter right to privacy and reputation (section 13).

Right to privacy

Section 13 of the Charter provides that a person has the right not to have, among other things, their privacy unlawfully or arbitrarily interfered with and the right not to have their reputation unlawfully attacked. The right to privacy protects a person from government interference or excessive or unsolicited intervention by other individuals.

The Bill engages the right of a person to privacy by mandating the Subcommittee’s unrestricted entry and access within a place of detention, and access to all relevant information 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. This includes personal and health information.

I consider that the right to privacy is limited by the requirement on a responsible Minister and detaining authority to ensure the Subcommittee has unrestricted access to places of detention and relevant information as specified in the Bill. However, for the following reasons I am satisfied the Bill is compatible with Charter and that any interference with the right to privacy is proportionate, is not arbitrary, and is reasonable and just to achieve the Bill’s purpose.

The Optional Protocol is a human rights treaty which seeks to protect people in detention against torture and mistreatment by the State through prevention focussed inspections. The Bill will ensure the Subcommittee may undertake such inspections during any visit to Victoria’s places of detention.

Appropriate safeguards have been included in the Bill to mitigate the impact on individuals’ right to privacy. The Subcommittee will only be permitted to inspect relevant identifying information during an onsite inspection in a place of detention. Further, without an individual’s consent, the Subcommittee will not be permitted to retain or copy any identifiable information outside a place of detention.

Limiting the right to privacy in circumstances where access to places and information may reveal instances of torture and other cruel, inhuman or degrading treatment or punishment is necessary to acquit the assurance role the Subcommittee will perform by virtue of its inspections. Failure to require the Subcommittee’s mandatory access to places of detention and relevant information could prevent the Subcommittee from having the necessary level of access to undertake inspections in accordance with their mandate under the Optional Protocol. As a result, potential instances of torture and other cruel, inhuman or degrading treatment or punishment may not be identified.

Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:36): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms SHING: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Victorian Government supports the principles of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and is pleased to introduce the Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022.

OPCAT seeks to protect persons in detention from torture and other cruel, inhuman or degrading treatment of punished whilst deprived of their liberty. It intends to achieve these aims through a regime of regular, independent, prevention-focussed inspections. Australia’s obligations under OPCAT are two-fold:

• enabling periodic visits by the United Nations Subcommittee on the Prevention of Torture (Subcommittee) across Australia; and

• establishing, designating or maintaining a domestic National Preventative Mechanism (NPM) to coordinate visits to places of detention and the monitor the treatment of persons in detention.

This Bill is intended to facilitate the Subcommittee’s inspections within Victoria, as a part of the Subcommittee’s periodic visits to Australia. It intends to complement existing oversight regimes to ensure that people in detention are protected against torture and other cruel, inhuman or degrading treatment or punishment.

Victoria is pleased to establish a framework that will ensure inspections may be carried out by the Subcommittee when it conducts its inaugural visit of Australia. Whilst a planned visit in March 2020 was suspended due to the COVID-19 pandemic, on 30 June 2022, the Subcommittee confirmed its upcoming visit to Australia in the second half of this year. Victoria looks forward to confirmation of the Subcommittee’s visit in due course.

The Bill will provide a framework to ensure Subcommittee visits may proceed in Victoria in accordance with OPCAT. In particular it:

• defines places of detention in scope for inspections by the Subcommittee across the Corrections, Youth Justice, Secure Welfare Services, Mental Health and Disability sectors, noting that in accordance with Article 4 of OPCAT a place of detention requires a person be detained by virtue of a public authority or at its instigation or with its consent or acquiescence.

• specifies the State’s obligations to facilitate, for the purpose of the Subcommittee’s visit and inspections, Subcommittee access to a place of detention and relevant information, and the ability to interview detainees and others in a place of detention.

• creates a system to support the Subcommittee’s access to places, information and people. This includes a consistent approach to entry requirements, information sharing provisions and the power to nominate accompanying officials and issue Ministerial Guidelines to assist and facilitate inspections operationally in places of detention.

• provides necessary safeguards to protect the privacy of detained persons and ensure detained or other persons who provide information to the Subcommittee are protected from reprisal; and

• provides necessary safeguards to enable detaining authorities to preserve security, good order, welfare and safety in places of detention during visits by the Subcommittee.

As an international human rights treaty, the Commonwealth’s 2017 ratification of OPCAT imposed additional and separate obligations on states and territories by virtue of domestic inspections under the National Preventative Mechanism. Victoria looks forward to continuing discussions with the Commonwealth regarding the National Preventative Mechanism to facilitate the full implementation of OPCAT across Australia in a way that is nationally consistent, effective and economically sustainable. Given its significance, Victoria wants to play its part in ensuring that Australia’s full implementation of OPCAT is done right.

I commend this Bill to the house.

Mr RICH-PHILLIPS (South Eastern Metropolitan) (17:36): I move, on behalf of Dr Bach:

That debate on this bill be adjourned for one week.

Motion agreed to and debate adjourned for one week.