Response to Consultation Paper OPCAT in Australia
The submission in response to the Australian Human Rights Commission (AHRC) on the ‘OPCAT in Australia Consultation Paper’ (Consultation Paper) was prepared by the Law Council.
Australia has taken a positive historic step in the campaign to end torture, through the Australian Government’s announcement of its intention to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
OPCAT is designed to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment. It requires the government to establish a system of regular visits, to be undertaken by independent international and national bodies, to all places of detention in Australia, including prisons, youth and immigration detention and mental health facilities.
The Law Council has long pressed for ratification as OPCAT will assist in preventing torture from occurring in any place of detention in Australia, as well as encouraging a culture of transparency and accountability. The State’s obligation not to impose such treatment or punishment or to expose anyone to the real risk of such treatment or punishment is an obligation which cannot be derogated from in any circumstances.
Ratification of OPCAT will build upon Australia’s history as a nation determined to eradicate and prevent torture, cruel, inhuman and degrading treatment at home and abroad.
It will enhance the protection of the fundamental rights of people in detention in Australia and improve conditions in detention facilities where required. Independent and regular external scrutiny will provide an incentive for those running detention facilities to develop effective prevention strategies.
Accordingly, the Law Council welcomes the AHRC’s Consultation Paper as an important part of facilitating consultations with civil society to provide advice back to the Australian Government. The Consultation Paper sets out a series of questions based on issues being considered in planning how OPCAT should operate in Australia.
The Law Council’s responses to the questions in the Consultation Paper are set out below. Key recommendations include:
- key elements of OPCAT implementation in Australia should preferably be documented in legislation or, at minimum, in a formal agreement;
- the National Preventive Mechanism (NPM) should prioritise issues such as current practices on seclusion and restraint, conditions in immigration and youth detention, and the treatment of Indigenous Australians in detention; Australian NPM bodies should establish processes for engaging effectively with civil society representatives and existing inspection mechanisms, as well as key government stakeholders;
- Australia can benefit from having access to the expertise of the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT); and
- Australia should have reference to international standards when making detailed decisions about how to apply OPCAT in Australia.
The Law Council would be pleased to discuss its comments further with the AHRC, should it assist.
You can read the full submission below.