Page 2741 - Week 07 - Wednesday, 6 June 2012
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A further concern the government has about the bill relates to the elements providing that an entitled person may ask to make a complaint to an official visitor with no-one else present and to an official visitor of the same gender. There is an obvious risk for the official visitor associated with such an entitlement, particularly to an official visitor working in closed environments, as people detained in mental health facilities, correctional facilities or child and youth justice rehabilitation facilities may pose a risk to themselves or to others. This risk is exacerbated by the fact that the proposed entitlement does not contemplate giving an official visitor the discretion to refuse to see a person without adequate safety measures or to refuse to see a frivolous or vexatious complainant. The government has both safety and logistical concerns about the proposal.
The bill’s stated minimum number of official visitors may not provide sufficient diversity to satisfy the gender requirement. In particular, there is currently only one female official visitor for children and young people, meaning that there would be no official visitor to hear complaints from entitled males, as required by the bill. As each official visitor has a different environment to work in, it would not be possible for official visitors from one area to prop up or fill gaps in another area simply to satisfy the gender requirement.
The bill proposes a number of new offences, liabilities and obligations that may not meet requirements for proportionality under the territory’s Human Rights Act. Under the bill a person in charge of an operating entity will be guilty of an offence if the person refuses or neglects to render assistance to the official visitor, fails to answer any question if asked by an official visitor, obstructs or hinders the official visitor in the exercise of the official visitor’s functions or fails to keep a record of each visit by an official visitor.
The existing scheme already requires various individuals to assist the official visitor in the exercise of the OV’s functions. For example, corrections officers have a duty to provide assistance to an OV while staff at mental health facilities have a duty to answer questions and produce documents if requested by the OV. The objective, therefore, of the new offence provisions is unclear. There has been no suggestion that these duties are not being met under the existing scheme. Furthermore, attaching criminal penalties to these duties is unnecessary to ensure compliance. The penalties may not satisfy the requirements of section 28 of the Human Rights Act that the limitation of any right must not be arbitrary and must be the least restrictive means to achieve the policy objective.
The Greens’ bill also makes the operational directorate responsible for breaches that may have occurred at facility level. In the case of the mental health official visitor scheme, it breaks the direct relationship between the mental health facility and the OV, and locates the OV’s powers outside the particular facility. The government believes removing the OV’s direct relationship with the person in charge of the facility will adversely impact on the effectiveness of those functions they are tasked with carrying out.
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