Then attorney general George Brandis ratified the Optional Protocol to the Convention Against Torture, otherwise known as the OPCAT, on 15 December 2017, which means our nation agreed to establish a UN governed system of independent bodies to inspect Australia’s places of detention.
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 treatment that constituted abuse and torture.
The deadline for OPCAT implementation was last January. But, under the Turnbull/Morrison administration, the rollout stalled and the UN had to grant our nation a one year extension to establish the system, which has long been improving the lot of detainees globally.
Don Dale Youth Detention Centre continues to operate, however. Self-harm incidents at the Darwin youth prison are ongoing, as is the use of isolation, while the centre’s population fluctuates between 90 to 100 percent First Nations children, with the youngest detainees being only 10 years old.
So, it’s against this backdrop, that the UN oversight body governing the OPCAT system, the Subcommittee on Prevention of Torture (SPT), has announced that it will be conducting 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,” said Australian Greens Senator David Shoebridge.
“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. And on ratifying the treaty, a country agrees to establish independent inspection bodies, known as National Preventive Mechanisms, or NPMs.
NPMs carry out random inspections of places where people are deprived of their liberty, which includes prisons, youth detention centres, immigration facilities and closed mental health centres. And 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 visiting our nation over 16 to 27 October will provide two outcomes. Firstly, 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 team of UN experts.
“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.”
In this country the national OPCAT system will be coordinated by the Commonwealth Ombudsman with each state or territory establishing its own NPM and legislative framework.
The major gripe these jurisdictions have had with implementation is the lack of funding at the federal level. This is the chief reason cited by NSW and Victoria for their earlier refusals to embark upon 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 its because it would show the public exactly what happens in our prison systems: the routine humiliation and degradation,” Shoebridge continued.
The Greens justice spokesperson 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.
The Australian prison system overincarcerates First Nations peoples to the point that they’re one of the most incarcerated people on the planet. And right now, 31 percent of the adult prisoner population is Indigenous, whilst Aboriginal youth detention figures are much more disproportionate.
And our nation’s mistreatment of asylum seekers is notorious. Not only is it mandatory to lock up people arriving by boat, but the government clarified in legislation last year that it can indefinitely detain noncitizens unable to be returned to their countries of origin due to international law.
So, while OPCAT doesn’t cover Australia’s offshore detention facilities, currently in its onshore system there are 129 individuals, who’ve been in immigration detention for over five years, despite the fact they’re not serving time for a conviction.
As for Don Dale child detention centre, Shoebridge maintains that the “inherently abusive” institution can’t be improved, especially as pre-existing inspection bodies were supposed to be monitoring it at the time it was teargassing, hogtying and spit hooding children.
So, this facility, where “on most nights, 100 percent of the kids… are First Nations”, should be shut completely, which would be in line with the human rights lens the nation is now taking to its places of detention with its ratification of 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.”