Page 2893 - Week 09 - Tuesday, 11 October 2022
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I am aware that making it mandatory to take a photograph or video recording, where possible, of a detained person’s injury or illness could impact on a detained person’s human rights, particularly their rights to equality and humane treatment, non-discrimination and protection from cruel, degrading or inhumane treatment. For example, a person may have cultural, religious or personal reasons why they may not want a person of a particular sex taking their photograph or a video recording, particularly where this could involve the removal of items of clothing to identify the site of an injury.
To ensure that this proposed government amendment is human rights compliant, justified and proportionate, I am proposing to introduce a complementary suite of additional safeguards to support this amendment. These safeguards will include allowing the detained person to request that a person of a particular sex take the photograph or video recording. The taking of the identification material must also be carried out in circumstances providing reasonable privacy to the detained person and not involve the removal of more clothing or more visual inspection than is necessary for the taking of the identification material.
Detained persons will be able to request a copy of the written record and the photograph or video recording, which will provide an additional layer of accountability, as this evidence can be used by detained persons in a complaint regarding their treatment while detained. Police officers will be required to inform a detained person of this right prior to the taking of the photograph or video recording.
An additional government amendment that will be made is to narrow the scope with respect to when this identification material may be used. The bill included that this could only be used in a complaint, investigation or proceeding that relates to the person’s apprehension or detention. The scrutiny committee raised the concern that this may be too broad and the use should be more clearly restricted to ensure that this identification material could not be used inappropriately.
The government amendments address this concern by narrowing the use of this material so that it may only be used in a complaint, investigation or proceeding that relates to the injury or illness suffered by the person while detained under a preventative detention order. This will ensure that the identification material can only be used in limited circumstances.
Recommendations were received from key stakeholders during the inquiry process into the bill regarding the amendments to improve safeguards for detained people with impaired decision-making ability. The bill will introduce a requirement for police officers to tell the detained persons why they have refused them contact with a person other than their parent or guardian.
It was recommended and accepted by the government that an additional amendment should be included to introduce record-keeping obligations for police officers. This government amendment will place a mandatory obligation on officers to make a written record of this refusal of contact and lists specific details to be included, including details of the person who the detained person sought to have contact with, the reason for this refusal and whether the detained person was reminded of their right to nominate another person to have contact with and whether they did so. The
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