Coalition Attorney-General George Brandis ratified the Optional Protocol to the Convention Against Torture (OPCAT) on December 15, 2017. It means agreeing to establish a United Nations-governed (UN) system of independent bodies to inspect Australia’s detention centres.
The determination to do this eight years after having signed the OPCAT treaty was prompted by the fallout from the mid-2016 Don Dale revelations, which exposed child inmates at the Darwin youth detention centre being subjected to abuse and torture.
The deadline for OPCAT implementation was last January. The roll-out stalled under the Turnbull-Morrison governments forcing the UN to grant a one-year extension to establish the system that has long been improving detainees’ lot across the globe.
The Don Dale Youth Detention Centre continues to operate in the Northern Territory. Incidents of self-harm continue at the Darwin youth prison, as does the use of isolation. The centre’s population fluctuates between 90–100% First Nations children, with the youngest detainees only 10 years old.
This is the context in which the Subcommittee on Prevention of Torture (SPT), the OPCAT oversight body, will conduct its first official visit to Australia in October.
Preventing rights abuses
“It’s pretty clear that it took the public embarrassment of the former federal government through the disclosure of the appalling behaviour at Don Dale to even ratify OPCAT,” Australian Greens Senator David Shoebridge said.
“But since then, we’ve seen no funding commitments from the federal government, no national coordination and, at best, piecemeal and inadequate work from the states,” he told Sydney Criminal Lawyers.
Entering into force in mid-2006, the OPCAT contains additional protocols built upon the 1984 UN Convention Against Torture. Upon ratifying the treaty, a country agrees to establish independent inspection bodies, known as National Preventive Mechanisms (NPMs).
NPMs carry out random inspections of places where people are deprived of their liberty — prisons, youth detention centres, immigration facilities and closed mental health centres. There’s also the potential to inspect other closed environments, such as aged-care facilities.
Where OPCAT differs from traditional detention inspections is that NPMs seek to detect circumstances where there is potential for human rights abuses to occur and then prevent them from taking place.
Made up of 25 independent experts, the SPT provides global oversight of OPCAT, and the UN body also visits nations that have ratified the treaty to inspect their centres of detention and provide its own recommendations for improvements.
No national consensus
According to Shoebridge, the SPT visit to Australia from October 16–27 will provide two outcomes. First, it will spur on “governments around the country to implement OPCAT before the visit, so as they’re not shamed on the international stage”.
Indeed, just days after the SPT announced its arrival date, the Victorian government introduced the Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Bill 2022, which aims to facilitate the inspections by the UN team.
“Secondly,” Shoebridge continued, the SPT will be closely reviewing “the very inadequate implementation that has happened to date and indicate, hopefully strongly, the further important steps to be taken to oversight detention and potential torture”.
The national OPCAT system will be coordinated by the Commonwealth Ombudsman, with each state or territory establishing its own NPM and legislative framework.
However, the major gripe the states and territories have had is the federal government’s lack of funding. This is the chief reason NSW and Victoria have cited for their earlier refusals to embark on the OPCAT roll-out.
As for the other states and territories, at the time the national implementation deadline came to pass, each jurisdiction had either established or nominated an NPM, while the others had introduced their legislative framework or in some cases had passed those laws.
Founded as a penal colony
“There is a reason that governments are loathe to implement OPCAT and it’s because it would show the public exactly what happens in our prison systems: the routine humiliation and degradation,” Shoebridge said.
He further underscored that OPCAT will also provide a “voice to inmates and prisoners and allow them an effective mechanism to call out systems that are routinely abusing them”, as the local and international inspection bodies will consult with them directly.
First Nations peoples are one of the most incarcerated people on the planet. Right now, 31% of the adult prisoner population is Indigenous, while the detention statistics for First Nations youth are much more disproportionate.
Australia’s mistreatment of asylum seekers is also notorious. Not only is it mandatory to lock people up who arrive by boat, but the government clarified in legislation last year that it can indefinitely detain non-citizens unable to be returned to their countries of origin due to international law.
OPCAT does not cover Australia’s offshore detention facilities. Currently, there are 129 individuals in its onshore immigration detention system: they have been there for more than five years despite the fact they have not been convicted of any crime.
As for Don Dale child detention centre, Shoebridge maintains that the “inherently abusive” institution cannot be improved, especially as pre-existing inspection bodies were supposed to be monitoring it at the time it was tear gassing, hog tying and spit hooding children.
This facility, where “on most nights, 100 percent of the kids … are First Nations”, should be shut completely, Shoebridge said. This would be in line with the human rights lens the nation is now taking to places of detention, having ratified OPCAT.
“Since modern Australia was established, and we should remember it was established as a prison, prison authorities have never had an effective oversight system,” Shoebridge said in conclusion.
“It is time now, almost two and a half centuries later, to fix that historical problem.”
[Paul Gregoire writes for Sydney Criminal Lawyers, where this article first appeared.]