Shedding Light on Closed Institutions: Why OPCAT is needed now more than ever

By Rebecca Minty and Amy Rogers
Rusty bars across a window

By Rebecca Minty and Amy Rogers.

The risk of abuse of power by authorities exists everywhere, in all countries of the world including Australia. This risk increases in closed environments, institutions where people are not free to leave of their own will. These places are out of public view, and out of sight often means out of mind. But Australia has an opportunity to further open these institutions up to external scrutiny to ensure the safety, health and dignity of our most vulnerable by ratifying a treaty aimed at preventing torture and ill-treatment.

In 2009 Australia committed to establishing a comprehensive system of monitoring and oversight of all places of detention, by signing the Optional Protocol to the UN Convention against Torture (‘OPCAT’). Four years later, as the Coalition takes over the reins, it is time for Australians to call for further action and ratification of this Treaty to protect some of the most vulnerable in our community.

These places are out of public view, and out of sight often means out of mind.

What is OPCAT?

The OPCAT is an international human rights treaty based on the philosophy that one of the best ways to prevent torture and ill-treatment in closed environments is to open them up to regular monitoring by independent teams of experts, who then engage constructively with authorities by making recommendations to address risk factors. The treaty was proposed by a group of states as a way to operationalise the obligation under Article 2 of United Nations Convention Against Torture (‘UNCAT’) to prevent torture and ill-treatment. The approach contained in the OPCAT was inspired by the work of the International Committee of the Red Cross (‘ICRC’) and their work monitoring detention in times of armed conflict. The ICRC’s work was seen to be highly effective in upholding dignity in detention, and the thinking was this should be expanded to all places of detention (including prisons, police cells, immigration detention, mental health facilities, aged care facilities etc.), in times of peace as well as war. Australia ratified UNCAT early on in 1989.

By its very nature detention puts people in a vulnerable situation, reliant on detaining authorities for their basic needs. However many people that end up in detention are vulnerable even before they lose their personal liberty, such as people with disabilities, asylum seekers, older people, young people, Indigenous people and people with mental illnesses. OPCAT seeks to protect these groups of people from harm when the state is responsible, focusing on identifying ill-treatment and promoting humane conditions in closed environments.

…many people that end up in detention are vulnerable even before they lose their personal liberty, such as people with disabilities, asylum seekers, older people, young people, Indigenous people and people with mental illnesses.

State Parties to the OPCAT are required to set up a strong domestic independent oversight mechanism, called a National Preventative Mechanism (‘NPM’), and to allow free and unfettered access to experts from the UN Subcommittee on Prevention of Torture (‘SPT’) to visit and carry out inspections.  The logic of this two-tiered oversight system (national and international) is that it will identify and eliminate human rights violations, enable the sharing of best practices, and allow expert monitors to engage in a constructive and collaborative relationship with detaining authorities – in turn preventing violations from occurring in the first place.

Why Australia needs stronger detention oversight

If your brother or sister was in a mental health facility and you discovered they were constantly being put in seclusion and restrained, but no one on the staff could tell you why or show you documentation to authorise this treatment, would you be concerned?  If a nephew was taken into police custody for questioning about something his mate was accused of, and given a bit of rough handling to ‘help him cooperate’ would you think that was appropriate and professional conduct by the police? If you go to visit your aging mum in a dementia ward after returning from a family holiday only to find her with terrible bedsores even though she was still mobile, would you feel uneasy?

These are real and daily concerns for many Australians deprived of their liberty and their families. Much of the ill-treatment that occurs in Australian institutions would not be torture: it is generally not deliberately perpetrated by staff and management, and often it does not meet the severe pain threshold required to constitute torture. However, ill-treatment has a significant impact on the well being of detainees and the culture of the institution. And ultimately it reflects much more broadly on our society – particularly if you hold the view expressed by Nelson Mandela and others that we should be judged not by how we treat our highest, most noble citizens but by how we treat the lowest and most vulnerable.

Incidences of mistreatment in detention in Australia’s recent history, are long and well documented by the Australian Human Rights Commission and others. Tragically there has been a growing number of Aboriginal deaths in custody in recent history, including the deaths of Mr Ward while being transported in a prison vehicle in Western Australia, Mr Briscoe in an Alice Springs watch house and Mr Doomadgee in police custody on Palm Island.  There have been too many examples of police officers using excessive force, and tasers, for example.  Incidences of elder abuse in nursing homes have sent alarm bells ringing again in the last month.

It is also well known that we have a suicide and self-harm problem in immigration detention facilities both in Australia and in Regional Processing Centers offshore. For example, UNHCR have reported deteriorating mental health in both adults and children on Manus Island and similar concerns among males in facilities on Nauru, where conditions are harsh – below international standards – and oversight inadequate. It is important to note that the OPCAT could apply to offshore places of detention where Australia is exercising its jurisdiction or control.

There is no nation-wide independent system for monitoring places of detention in Australia. However, Australia does have a range of institutions at a Federal and state/territory level that provide oversight in different ways, including Human Rights Commissions, Ombudsmen’s offices, Custodial Inspectorates, and NGOs. Yet with the diverse and varied mandate of these organisations, the end result has been patchy and inconsistent oversight, and the focus is often reacting to cases of ill-treatment after they have occurred, rather than the preventive approach proposed by the OPCAT that looks at overall conditions and calls for analysis of risk factors. Further, existing institutions have faced financial restraints in conducting monitoring work. The shortcomings of Australia’s oversight system for detention facilities were highlighted by the UN Committee against Torture in its 2008 Concluding Observations and in its 2010 Universal Periodic Review.

Progress and impediments to OPCAT

If Australia were to ratify OPCAT today, it would become the 70th State Party to the OPCAT, joining the likes of New Zealand, the United Kingdom, Sweden and Germany, and in the Asia Pacific region, the Philippines, Maldives, Nauru and Cambodia. Nauru became a State Party in January 2013, and has the obligation, by early 2014 to establish a system of independent oversight of all places of detention, including the Regional Processing Center for Australian immigration detainees.

Ratification of the OPCAT was first considered by the Federal Parliamentary Joint Standing Committee on Treaties (JSCOT) in 2004. Despite 17 out of 20 submissions in favour, ratification was rejected on a number of grounds including the lack of a ‘compelling reason’ for a UN Committee (the SPT) to visit Australia. Eight years on, in 2012, the JSCOT came to a very different conclusion, with a bipartisan report supporting ratification. This followed a favourable National Interest Analysis earlier that year.

A popular option proposed envisages the designation of the Australian Human Rights Commission as the central coordinating NPM, given its established role in monitoring and reporting on Australia’s international human rights obligations and its experience in immigration detention monitoring. States and territories will need to establish or designate their own NPMs within their jurisdiction. This mixed-NPM model is preferred for Australia’s federal-state system. In designating Australia’s NPM, independence, coordination and adequate funding will be crucial issues, and may require both structural and statutory changes to existing institutions to bring them into OPCAT-compliance.

Much of this implementation detail is still to be finalised.  However it is not necessary for every detail and administrative framework at a state and territory level to be planned out before ratification can occur. Given that the JSCOT report and NIA support ratification with a declaration that allows deferral of the obligation to establish/designate the NPM for three years, states and territories will have enough time to determine the most appropriate institutions to perform the role of NPM following ratification. The ACT and Northern Territory have already released draft legislation, but other States and the Commonwealth still need to follow suit.

OPCAT ratification in Australia would not be a cost-neutral proposition, as the text of the treaty requires State Parties to ensure NPMs have the necessary financial and other resources to fully carry out their functions. However, even when prevention of ill-treatment is viewed in economic cost/benefit terms, the result is likely to have a favourable medium to long term impact on the balance sheet, although no comprehensive economic modeling has been carried out to date. Certainly when one measures the savings in terms of avoiding litigation for unlawful detention or ill-treatment, lower health costs for detainees both in detention and after release, and benefits for detention staff of a healthier, safer workplace, OPCAT ratification makes financial sense.

A call for ratification

Given the bipartisan support for the ratification of OPCAT following the 2012 JSCOT report, there is hope that the Abbott Government will recognise the common sense benefits of a stronger oversight mechanism in Australia and take action towards ratification. After all this treaty is not about naming and shaming.  Instead, it is about transparency and accountability through a process of making recommendations and entering into a dialogue with detaining authorities about implementation measures. As such, it could in fact depoliticise hot issues and encourage constructive dialogue at an institutional level. This has been the experience of New Zealand, which has seen some enthusiasm by authorities in cooperation with NPMs as the program of monitoring visits assists them in identifying risk factors and improving their own performance. Australia’s NPM will similarly be able to develop standards and can improve the overall service delivery and efficiency of detaining institutions in Australia.

Australia should also be willing to set a good example in our region. In doing so, we will have more credibility to further work on preventing torture and promoting human rightsin the Asia Pacific through our foreign relations and development objectives.

It should be stressed that preventive monitoring is ideally coupled with criminal justice system reforms that reduce the number of persons in restrictive forms of detention focusing on those groups overrepresented in closed environments. For example by prioritizing community detention for asylum seekers and focusing on justice reinvestment to address the over incarceration of Indigenous youth and people with disabilities, incidences of ill-treatment will be reduced.

In summing up our call for the new Government to urgently ratify OPCAT, we stress that Australia does not need another Royal Commission or more coronial inquests. Instead we need to focus on preventing human rights violations so that they don’t occur in the first place, and when they do, we need an early intervention mechanism that will address violations straight away and prevent them from happening across institutions nationwide.

But there is a real danger, as Professor Richard Harding remarked in February last year that Australia may not take decisive or timely action on OPCAT, which would be a huge missed opportunity. Post-federal election it is imperative that we build on the OPCAT momentum that developed following the 2012 JSCOT report. As a human rights sector we must again bring the importance of OCPAT to the forefront of the minds of our new leaders, share the stories of those most affected, work with detaining institutions who will benefit under an OPCAT regime and urge our Government to work with the remaining states and territories to get the job done.

Rebecca Minty is the Asia Pacific Advisor with the Geneva-based NGO, the Association for the Prevention of Torture (APT). For the last three decades, the APT been promoting oversight and transparency in detention, and was one of the key organisations behind the drafting and adoption of the OPCAT. Originally from Canberra, Rebecca has previously worked for the ACT Human Rights Commission, the Center for Justice and Accountability in San Francisco, and Minter Ellison Lawyers. 

Amy Rogers is an Australian human rights advocate currently living in Mongolia, working at the National Human Rights Commission of Mongolia (NHRCM) as a Human Rights Education Officer. The NHRCM is currently building capacity for its likely future role as the NPM, as it is expected that Mongolia will shortly ratify OPCAT. Previously, Amy has worked for the Australian Human Rights Commission and GetUp!