Mr GAFFNEY (Mersey) - Mr President, I wish to commend the honourable Justice on the redraft of the proposed OPCAT Implementation Bill. I also appreciate he ordered the briefings and discussion we had regarding the bill.

This is a standalone act that operates independently of other legislation. It is essential for creating robust and comprehensive protection of the OPCAT provisions. This is an incredibly important step in ensuring Tasmanians are protected from mistreatment in our state, no matter their circumstances.

Internationally, OPCAT seeks to provide a means of monitoring how countries are performing in protecting their citizens and facilitate the subcommittee on torture, to visit places of detention to ensure human rights are being respected and upheld. The focus of the proposed legislation is not only responding to instances of abuse treatment and torture but on preventing it from occurring in the first place.

In their 2020 report on implementing OPCAT in Australia, the Australian Human Rights Commissioner described the primary aim as identifying and addressing harm in detention, before this harm becomes more serious, widespread or systemic. To fully understand the gravity of this bill and the harm it seeks to prevent, it is necessary to briefly address how we reached this position.

The federal government ratified the OPCAT in December 2017. In doing so they agreed to be bound by international law and to subsequently begin the process of meaningfully implementing it in Australia. However, at the time the federal government postponed fulfilling the obligation by three years as permitted under article 24 of OPCAT. It is now nearly four years on that we are practically engaging with this issue. It is predominantly about those who are most vulnerable in our community that are in places where there may be restricted liberty, hospitals, correctional centres, police stations and so on.

Vulnerable members of our community include children, Aboriginal and Torres Islander people and people with disability. There is significant evidence across a variety of sectors it is these groups who are at increased risk of exploitation and degrading treatment. To this end clause 12 of the proposed legislation is a welcome addition, specifically requiring the consideration of cultural and ethnic groups and people living with disability in the hiring of staff for the National Preventive Mechanism.

The OPCAT Implementation Bill offers a new lens of oversight we have not previously seen in Tasmania. Community stakeholders such as Australian Lawyers for Human Rights, People with Disability Australia, the Australian Psychological Association, all note many current inspectorate mechanisms only respond to complaints after the fact. The OPCAT will aim to prevent mistreatment in the first instance. It is proposed this would occur through a National Preventive Mechanism.

As summarised by the Minister for Justice the primary function of the NPM will be to undertake regular unannounced inspections of places of detention to examine the treatment of detainees with a view to strengthening, if necessary, their protection against torture and other cruel, inhumane or degrading treatment or punishment. The proposed legislation will give the nominated NPM access to information regarding persons deprived of their liberty and the place at which they are detained.

Under article 4, the OPCAT protocol defines any place under Tasmania's jurisdiction and control where persons are, or may be, deprived of their liberty. This has been qualified as a facility such as correctional centres, prisons, detention centres, hospitals and police stations or cells. For clarity an important distinction must be drawn here. The NPM does not appear to purport to replace other oversight and investigative bodies that already exist in Tasmania such as the Custodial Inspector or the Health Complaints Commissioner, but instead it will actively source information from confidential interviews with detainees and have the opportunity to provide any information they gather from these processes back to the United Nations Subcommittee on Prevention of Torture.

As with any function that aims to investigate wrongdoings in our systems, it is critical the NPM operates independently and impartially to allow for complete transparency. To this end, the protection from reprisal provision in clause 36 of the bill is an especially notable provision allowing Tasmanians the freedom to report instances of abuse without fear of reprisal, and is essential to ensuring this mechanism functions to its full potential.

As has been noted previously, the NPM is not expected to be a static mechanism. It will be an iterative process that is expected to evolve and change with community needs and best practice as they emerge. A significant concern that emerged from community consultation is the proposal that we will have a single NPM as opposed to an integrated multibody. This is perhaps evidence of how we expect the NPM to change allowing the appointment of multiple NPMs in the future to create better expertise across all sectors.

Implementation on a state by state by basis is going to be an integral part of ensuring OPCAT is effectively entrenched in Australia. The learnings we may identify under the proposed framework would not just improve detention practices in Tasmania, but offer an opportunity to share these practices nationwide.

However, changes such as these cannot occur without significant resourcing. The administration of the bill will require adequate support to ensure financial and operational autonomy. Legislation such as this always poses the risk it will not receive enough funding to perform its most crucial operations, particularly in an area as complex as this. I wish to stress that it is our responsibility to ensure this legislation is not relegated to the background.

Stakeholders such as the Tasmanian Institute of Law Enforcement Studies and the Tasmanian Council of Social Services have raised concerns about the Custodial Inspector being designated as the single NPM for this very reason. We must ensure that the NPM, in whatever form, is the most effective, multi-faceted and have the necessary expertise to cater for the unique demographic is Tasmania.

As the Australian Human Rights Commission concluded in their 2020 implementation report, the changes required by OPCAT should be pursued in a way that promotes stronger and more consistent human rights protections for people who are detained across all jurisdictions.

Mr President, I am confident that the OPCAT Implementation Bill 2021 is a sound, robust proposal which serves not just Tasmanians who are directly affected by detainment but their families, their carers and the wider community.

I look forward to seeing it come to fruition.