OPCAT is a unique treaty that aims to ensure that that those who are placed in detention, in whatever context, are treated with dignity and respect. There are many examples where Australian institutions have failed to do so, spanning from the Royal Commission into Aboriginal Death in Custody in 1987 to the findings of the Don Dale Royal Commission and its revelations of gross mistreatment and abuse at the youth detention facility in the Northern Territory in 2017. The strength of Australia’s commitment to its human rights obligations with respect to humane treatment of those in places of detention can be measured by its engagement with OPCAT.
Australia ratified OPCAT on 21 December 2017 as a direct response to Don Dale Royal Commission. The ratification supported Australia’s bid to become a member of the United Nation Human Rights Council. At the time of ratification, Australia invoked Article 24 of the OPCAT to postpone its obligations to establish an NPM until January 2022 arguing that postponement was necessary to negotiate with the States and Territories. The core obligation arising from ratification of OPCAT is the establishment of a system of regular visits to places of detention by an independent body or bodies, known as National Preventive Mechanisms (NPMs). The explicit aim of the visits is to prevent torture and ill treatment by examining the conditions of detention. The OPCAT treaty requires states parties to enable the Sub Committee for the Prevention Against Torture (UN SPT) to visit places of detention and to work collaboratively with the NPMs. Australia’s Federal structure requires legislative intervention in Australian states and territories in order to properly recognise the special mandate of the UN SPT.
What progress has been made?
In September 2019, the Commonwealth Ombudsman assessed the current level of OPCAT compliance of Australia’s various oversight bodies. The same year the Australian Journal of Human Rights published a special issue edited by Bronwyn Naylor, Edward Santow, Sophie Farthing, Penelope Weller & Stan Winford and entitled “Preventing Abuse in Detention: effective independent monitoring within the OPCAT framework”. In the special issue Richard Harding outlines Australia’s complicated pathway to ratification on OPCAT, Ben Buckland and Audrey Olivier-Muralt discuss the challenges of federalism in developing NPM models, Michael White provides an analysis of the NPM experience in New Zealand, Nick Hardwick and Rachel Murray examine the regularity of NPM visits in Europe highlighting the importance of frequent and regular NPM visits. Rebecca Minty discusses the important role of civil society, Bronwyn Naylor and Stan Winford examine the links between monitoring and rehabilitation and Penelope Weller analyses the intersection between OPCAT and Convention on the Rights of Persons with Disabilities (CRPD).
In 2020, the Australian Human Rights Commission released its report on how OPCAT should be implemented. Both the UN SPT and the Australian Human Rights Commission point to the need for an overarching framework or support the implementation of OPCAT either by Commonwealth legislation or an inter-governmental agreement between the jurisdictions. This has not been forthcoming.
Australian civil society organisations led by the Australia OPCAT Network are monitoring Australia’s OPCAT progress. Despite the absence of an overarching framework, several states are in the process of passing legislation, developing NPMs and building on the expertise of existing custodial inspectorates, visiting schemes and ombudsmen. Some have yet to formally establish their NPMs. With January deadline looming, this work has become urgent.
This section outlines current development at the Commonwealth level and in each state:
Commonwealth The Office of the Commonwealth Ombudsman has been named the NPM Coordinator and the NPM for Commonwealth places of detention. The Office has established an OPCAT Advisory Group and continues to advocate for effective OPCAT implementation. In 2021 it published its report Monitoring Immigration Detention – The Ombudsman’s Activities in Overseeing Immigration Detention (January to June 2020).
The Northern Territory passed legislation in 2018 based on model law previously developed by jurisdictions to create a framework to enable UN SPT visits to places of detention. It is currently drafting another Bill to designate and empower its NPM. It has designated the Ombudsman NT as an interim-NPM for the purposes of engagement with stakeholders.
The Australian Capital Territory also passed legislation in 2018 to enable SPT visits. The ACT has undertaken several roundtables with stakeholders including civil society. It has proposed that the ACT NPM consist of three entities, the ACT Ombudsman for monitoring in places of police custody, the ACT Human Rights Commission for monitoring of mental health and forensic disability facilities, and the Inspector of Correctional Services for prisons and youth justice facilities.
New South Wales has not publicly released any information on its implementation process to date. Two inquiries conducted since 2018 have recommended designation of the Inspector of Custodial Services and the NSW Ombudsman and the NPM. Both organisations have put forward their intent to fulfil the role for custodial settings. There is also discussion with the Mental Health Official Visitors Program in NSW with a view to progressing OPCAT monitoring in the mental health sector. A statutory review of the Inspector of Custodial Services Act 2012 has also recently been completed.
Victoria has also not made public its intentions regarding OPCAT. However, the Victorian Ombudsman has undertaken two trial OPCAT inspections in 2017 and 2019 and the Commission for Children and Young People has put forward its interest in fulfilling the role with respect to its responsibilities for the wellbeing of children and young people.
Queensland introduced the Inspector of Detention Services Bill 2021 into parliament in October this year. The Bill is designed to be OPCAT compliant and provides for the QLD Ombudsman to have independent oversight of youth detention, prisons, and police custody. Queensland has not verified that the Qld Ombudsman will be the NPM or part of the NPM for QLD.
Western Australia is the first state to establish its NPM. The Inspector of Custodial Services is the designated NPM for prisons, youth detention and police custody and the Ombudsman WA is for mental health and forensic disability facilities. So far, the designation has not been accompanied by legislative amendments or added resources.
South Australia passed amendments to the Correctional Services (Accountability and Other Measures) Amendment Bill in 2021 which established a new body of Official Visitors as the NPM for corrections. A second standalone OPCAT Implementation Bill 2021 passed the lower house, is currently being debated in the Legislative Council. The Bill designates the Training Centre Visitor for monitoring in youth detention, the Community Visitor Scheme for mental health and forensic disability facilities and extends to jurisdiction of the corrections Official Visitor Scheme to include police custody.
Tasmania also introduced its OPCAT Implementation Bill 2021 which passed the lower house and is currently being debated in the Legislative Council. The Bill is designed to create an NPM for all places of detention with the expansive definition in mind, complementing existing oversight bodies and designates the Tasmanian Ombudsman (with the possibly of others) as the NPM. The Bill is the product of several rounds of public consultation and has developed significantly from the original intention to amend the Inspector of Custodial Services Act.
In summary, Australian jurisdictions are making progress toward establishing components of an NPM but the necessary actions with respect to establishing an effective NPM network in Australia are far from complete. The emerging model is one of collaborative, multi-body agencies. As is discussed in detail in forthcoming article in the Alternative Law Journal. A key sticking point has been the allocation of Commonwealth Funding. One-Off Commonwealth Funding was recently announced in the Closing the Gap Implementation Plan on 5 August 2021, but does not address future resourcing of the NPM.
What is at stake?
The Commonwealth Government has not provided national leadership with respect to OPCAT implementation. It has not chosen to pass legislation to create an overarching framework for OPCAT, such as an inter-governmental agreement between the jurisdictions. Moreover, it has stipulated that Australian NPMs will confine their attention to ‘places of primary detention’. The direction to limit the scope of NPM work to place of primary contradicts the broad definition used in the treaty. Article 4(2) states:
2. For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.
The OPCAT treaty is intended to apply to the full range of place where people may be deprived of their liberty including prisons, immigration detention, aged and social care and mental health facilities.
Should Australia fail to adhere to its obligations by January 2022, it risks being named as a states party whose compliance with the obligations in Article 17 of the treaty is substantially overdue. If that were to occur Australia would be the only developed nation named on the list of nations state who are delayed in the obligations. Developed nations around the world have already established NPMs under the OPCAT treaty. The United Kingdom and New Zealand have set up multi-body NPMs. The enduring importance of OPCAT for Australia was outlined at a recent webinar hosted by the University of Tasmania. OPCAT is an opportunity to demonstrate how a dynamic network of NPM bodies, fully compliant with OPCAT and engaged with the UN SPT could ensure the proper treatment of those in detention.
Authors: Steve Caruana and Penelope Weller