Yesterday’s announcement that the Government intends to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment – otherwise known as OPCAT - is the most significant advance in the protection of human rights in Australia since the creation of the Parliamentary Joint Committee on Human Rights some years ago.
Adopted by the UN General Assembly in 2002, the Protocol seeks to prevent the torture and other cruel acts against those held in detention. Critically, OPCAT provides not only for a national monitoring regime of detention facilities, but it also establishes an international regime of independent scrutiny. The scope for monitoring under the protocol is wide. The definition of ‘detention’ includes prisons, immigration detention facilities, youth detention centres and other facilities where, for example, those with cognitive disabilities are held.
The decision to ratify, 8 years after Australia signed the Optional Protocol in 2009, comes at a critical time when Australians are increasingly aware of the human rights at risk in detention. As is often the case, political responses to human rights abuses depend upon the ‘iconic’ picture of abuse or media report of a shocking breach of fundamental rights. The horrific CCTV footage of an indigenous juvenile held in a steel restraint chair revealed by the ABC’s Four Corners last year prompted the appointment of the current Royal Commission into the Northern Territory’s juvenile detention centres. The WA Coroner has recently criticised the ‘inhumane’ treatment contributing to the death of Ms Dhu when she was held in police custody three years ago. The Ms Dhu case reminds us of the public demand for reform that followed the Royal Commission’s Report on Aboriginal deaths in custody as long ago as 1995.
The AHRC especially welcomes the decision to accept ratification of OPCAT as many of the most egregious allegations of beaches of human rights that are brought to the Commission arise in the context of detention of one form or another.
The indefinite and arbitrary detention of some asylum seekers, contrary to international law, remains a serious concern. About 1300 asylum seekers and refugees are currently held in Australian facilities such as MITR, Villawood and…., and several hundred people whose visas have been cancelled remain on Christmas Island. It is notable that the conditions for asylum seekers and refugees in detention on Manus and Nauru have, for example, been described by the UN Rapporteur as cruel and inhumane contrary to the Convention on Torture.
The treatment in detention of those in juvenile detention- overwhelmingly of indigenous Australians- has been the subject of numerous reports, including by the AHRC to Parliament. So too the Commission and others have drawn attention to the plight of those with cognitive disabilities or health needs who are detained, sometimes indefinitely.
The new regime of scrutiny will take some years to establish. OPCAT requires the government to set up an independent ’national preventive mechanism’ for visits to any place under its jurisdiction ‘where persons are or may be deprived of their liberty’, by order of a public authority. In short, the regime of visits applies to any place where a person cannot leave at their will.
A notable feature of OPCAT is that it creates, for the first time, a mandatory international inspection and reporting regime. OPCAT has created the Subcommittee on Prevention of Torture with a mandate to visit places of detention and to make recommendations to individual country members. Australia will be required to receive the Subcommittee in its territory, to grant it access to all places of detention and to provide unrestricted access to all relevant information. Importantly, the Subcommittee has the right to have private interviews with detainees. The Subcommittee is bound by confidentiality, but provides an annual report to the Committee Against Torture on its activities.
By accepting these obligations under OPCAT, Australia joins 83 other nations who have ratified the Protocol. Australia will be the seventh country in Asia to do so.
The timing of Australia’s ratification of OPCAT will be crucial to the success of its bid for a seat on the United Nations Human Rights Council for the 2018-20 term. The vote for two new members of the Council will be held in October this year when Australia faces competition from France and Spain. The AHRC strongly supports Australia’s efforts to join the Council as we have much to contribute to the global protection of human rights, especially in the Asia Pacific region. The Foreign Minister and Attorney-General point out in their joint announcement, that Australia is committed to the international human rights system. Ratification of OPCAT is a significant step in demonstrating that commitment.