Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)
Introduction
On January 20, 2023, Australia missed an important deadline under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
This is what you should know about it.
What is OPCAT?
OPCAT is an international agreement aimed at preventing torture and cruel, inhuman or degrading treatment or punishment. It allows Australia to strengthen its commitment to reducing torture, degrading and inhumane treatment in places of detention.
What are OPCAT’s requirements?
In Australia, the need for OPCAT arose from the poor treatment of some detained individuals, and the need for oversight in places such as mental health facilities, with this poor treatment being the subject of three Royal Commissions in the past.
OPCAT requires member countries to create a coordinated and independent inspection system for all places of detention within that country, including police watchhouses, juvenile detention facilities, immigration detention facilities, aged care facilities and secure disability facilities. This is often defined as a national preventative mechanism or NPM.
Australia’s Breach
The United Nations has stated that Australia is clearly in breach of its OPCAT obligations. In particular, it noted the mistreatment of detainees in youth detention centres and the indefinite detention of asylum seekers and refugees.
Australia has not implemented NPMs as oversight systems for places of detention and has failed to meet all the Human Rights Commission’s recommendations for complying with OPCAT obligations.
Australia has recently missed the January 2023 deadline for complying with OPCAT after being granted several extensions. Some states, notably Queensland, New South Wales and Victoria have refused to comply, citing concerns about how implementation would be funded. These states argue that Commonwealth assistance is required to comply.
Subcommittee Visit
In October 2022, the UN’s Subcommittee on the Prevention of Torture visited Australia for the first time to inspect prisons, youth detention centres, and immigration detention centres.
Halfway through its two-week visit the subcommittee pulled out of Australia, stating it was being obstructed by state governments and could no longer do its job. Inspectors had been denied entry to prisons and detention facilities in New South Wales and Queensland.
On the 20th of February 2023 the subcommittee confirmed there are no plans to return.
WA’s Actions under OPCAT
Australia adopted a multi-level monitoring system to comply with OPCAT, with each State and Territory required to establish an NPM. On 19 July 2019, WA became the first jurisdiction outside of the Commonwealth to nominate the NPMs. These were the Office of the Inspector of Custodial Services (OICS) and Western Australian Ombudsman.
However, no additional resources were allocated to either body to undertake their roles, placing the systems under further stress. Despite the lack of support, OICS has already highlighted disturbing conditions in Banksia Hill Detention Centre.
Steps for Reform
A key issue is funding, which has contributed to the delaying the establishment of the Australian NPM Network. The Australian Government pledged funding for 2021-22 to support states and territories to comply, however each jurisdiction is responsible for funding their own oversight.
Both NSW and Victoria governments have put forward to the Commonwealth that substantial and continuous funding is essential to deliver on their OPCAT obligations. Funding is supplied on an interim basis but is not sustainable further.
The Ombudsman will be allocated $47.75 million in 2022-23, but this number will drop to $42.8 million in the following year and $41.3 million in 2024-25, equating to a cut of nearly 15 per cent.
Funding must be sustainable for states to comply with OPCAT. If Australia is serious about protecting human rights, all states must ensure that detention centres are given oversight.
Sources:
Australian Human Rights Commission, Implementing OPCAT in Australia (Report, 2020) 13.
Australian Human Rights Commission, ‘Road Map to OPCAT Compliance | Oct 2022’, OPCAT: Optional Protocol to the Convention against Torture, (website, 24 January 2022) <https://humanrights.gov.au/our-work/rights-and-freedoms/projects/opcat-optional-protocol-convention-against-torture?utm_source=nationaltribune&utm_medium=nationaltribune&utm_campaign=news>.
Matthew Doran, ‘Australia misses another deadline to implement international anti-torture treaty’ ABC News (online, 19 January 2023) <https://www.abc.net.au/news/2023-01-20/australia-misses-deadline-to-implement-anti-torture-agreement/101874602?fbclid=IwAR3OFZs5PO3NC5bxkvnoFaPTGJHN5BNr8gFrJLx51QehihVQT-5VU_dwH50>.
Lorraine Finlay, ‘Australia needs to deliver on our treaty promises’ Australian Human Rights Commission (Blog Post, 20 January 2023) <https://humanrights.gov.au/about/news/opinions/australia-needs-deliver-our-treaty-promises>.
Erin Handley, ‘UN torture prevention body suspends Australia trip citing 'clear breach' of OPCAT obligations,’ ABC News (online, 24 October 2022) UN torture prevention body suspends Australia trip citing 'clear breach' of OPCAT obligations - ABC News;
Tom Canetti, ‘A UN anti-torture body struggled to visit Australian prisons. Rights groups say it's 'deeply embarrassing,’ SBS News (online, 24 October 2022) Why the United Nations has taken aim at Australia over prison visits | SBS News.
Office of the Inspector of Custodial Services, ‘Our Environment: Custodial and Office Pressures’ Office of the Custodial Services (29 November 2022) <https://www.oics.wa.gov.au/about-oics/custodial-environment-2016-2017/>.
Commonwealth of Australia, Annual Report of the Commonwealth National Preventative Mechanism under the Optional Protocol to the Convention Against Torture (OPCAT) (Report, 30 June 2023) 43.
Australian Capital Territory, ‘OPCAT Implementation’ (Funding Agreement, 24 March 2022) <https://federalfinancialrelations.gov.au/sites/federalfinancialrelations.gov.au/files/2022-04/OPCAT%20Implementation.pdf>.
Office of the High Commissioner of Human Rights, 'UN Torture Prevention Body Terminates Visit to Australia, Confirms Missions to South Africa, Kazakhstan, Madagascar, Coratia, Goergia, Guatemala, Palestine and the Phillipines' (Press Release, 20 February 2023).