Implementing OPCAT in Australia (2020)

1. Introduction

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) aims to improve how people’s human rights are protected when they are detained. It does this by providing for a rigorous process of independent inspections of all places of detention in a country’s jurisdiction. In so doing, OPCAT enables a light to be shone on the conditions experienced by people in detention.

On 21 December 2017, the Australian Government ratified OPCAT.[i] By ratifying OPCAT, Australia agreed to be bound by the treaty, and signalled to the world that it will comply with it.

The Commission’s focus here is on implementing OPCAT. That process involves incorporating the terms of the treaty into Australian law, policy and practice. The Australian Government Attorney-General’s Department has recently indicated that it intends for a federated model of National Preventive Mechanisms (NPMs) to be established by January 2022.[ii]

Some progress in implementing OPCAT has been made since ratification. However, many critical questions, including the designation and operation of NPM bodies (Australia’s domestic detention inspection bodies), are only partially resolved. The Commission considers, however, that progress towards implementation of OPCAT to date has been too slow.

This has been despite the expression of public concern about conditions and treatment of people in different detention settings, ranging from police watch houses, juvenile detention facilities, immigration detention facilities, aged care and secure disability facilities.

Indeed, concerns relating to the treatment of people detained have been the subject of three Royal Commissions, two of which are ongoing at the time of writing.

There needs to be greater momentum towards implementation. The Commission’s recommendations are focused on the inspection systems required under OPCAT being fully operational and compliant by January 2022 at the absolute latest.

This document brings together the Commission’s work in this area. The recommendations made here are informed by the Commission’s consultation process, which has included face-to-face meetings and receipt of written submissions. It is also informed by the Commission’s extensive work on OPCAT over more than a decade, including the Commission’s 2017 interim report on implementing OPCAT and the National Children’s Commissioner’s 2016 report on the application of OPCAT to the custodial detention of children and young people.[iii]

[i] Australia signed OPCAT on 19 May 2009. On 9 February 2017, the Australian Government announced it intended to ratify OPCAT, working closely with the states and territories on implementation: Commonwealth Attorney-General, ‘Media Release – Improving oversight and conditions in detention’, 9 February 2017, <http://pandora.nla.gov.au/pan/21248/20171220-1246/www.attorneygeneral.gov.au/Mediareleases/Pages/2017/FirstQuarter/Improving-oversight-and-conditions-in-detention.html>.

[ii] Attorney General’s Department Senate Standing Committee on Legal and Constitutional Affairs, Supplementary Budget Estimates 2019-20 (LCC-SBE19-141-OPCAT-National Preventive Mechanism) (4 November 2019).

[iii] National Children’s Commissioner, Australian Human Rights Commission, Children’s Rights Report 2016 (October 2016), <http://www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2016>.