What is OPCAT?
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an international agreement that helps countries meet their obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
OPCAT aims to prevent cruel, inhuman and degrading treatment or punishment within closed environments such as prisons, immigration detention centres, police detention facilities, psychiatric wards and care facilities.
OPCAT was adopted in 2002 and entered into force in 2006. As at 30 June 2018, there are 88 State Parties;to OPCAT and an additional 14 States are signatories.
Australia’s ratification and implementation of OPCATThe Australian government ratified OPCAT on 21 December 2017. By ratifying OPCAT Australia has signalled to the world that it will comply with the Treaty. Australia has agreed to:
- set up an independent body or bodies – a National Preventative Mechanism (NPM) – to access all places of detention in all states and territories
- international inspections of places of detention by the United Nations Subcommittee on the Prevention of Torture.
At the time of ratification, Australia invoked Article 24 of OPCAT, which allows for a three-year period to introduce measures to fully implement the treaty. Australia may seek an extra two years’ extension of this deadline.
The Commonwealth Ombudsman has been appointed as National NPM Co-ordinator, responsible for coordination and capacity building among all federal, state and territory bodies that fulfil the NPM function. The Commonwealth Ombudsman has also been appointed as the NPM body for Commonwealth primary places of detention, including onshore immigration detention facilities, federal police cells and Defence detention facilities. This role formally begins on 1 July 2018.
Each Australian jurisdiction is responsible for determining which body or bodies will undertake the NPM function in respect of its own places of detention. The Australian Government is currently working with states and territories on the details of OPCAT implementation, including through the Council of Attorneys-General.
Australian Human Rights Commission consultations
In early 2017 the Commonwealth Attorney-General asked the Australian Human Rights Commission (AHRC) to conduct consultations with civil society to provide advice to the Australian Government on views about OPCAT implementation. In order to do so the AHRC released a Consultation Paper (Stage 1) in May 2017.
The AHRC and the Commission co-hosted a round table discussion with members of Victorian civil society in June 2017. The Commission provided a submission to the AHRC consultation in July 2017. Roundtable discussions were also held in Canberra, Sydney, Adelaide and Darwin.
The AHRC provided a preliminary report to the Attorney-General in late 2017. Views from the round tables and submissions were represented in the report.
The AHRC released its Consultation Paper (Stage 2) in June 2018, including proposal for implementation. Submissions on these proposals are invited until 14 September 2018.
Victorian Ombudsman investigation
The Victorian Ombudsman tabled its Implementing OPCAT in Victoria: Report and inspection of the Dame Phyllis Frost Centre in Victorian Parliament in November 2017. This report illustrates the scale of the task for Victoria to become OPCAT-compliant. It demonstrates that significant legislative, funding and operational changes will need to be made in order to create an effective detention oversight system in Victoria.
The Ombudsman found that no current Victorian body meets the standards for NPMs set out by the UN Subcommittee for the Prevention of Torture (SPT). These standards include functional independence; necessary resources; legislative mandate; ability to access information, all places of detention and detainees; and the ability to make recommendations and to publish annual reports.
The Ombudsman conducted a pilot OPCAT-style inspection of the Dame Phyllis Frost Centre (DPFC) over seven days in July 2017. The aim of the inspection was to identify risks that increase the potential for torture and other cruel, inhuman and degrading treatment at the prison, and protective safeguards against that risk. The findings demonstrate the importance of scrutiny of closed environments. They illustrate the practical means by which OPAT can provide positive outcomes for the human rights of people in detention.
The Victorian Ombudsman made 19 recommendations to reduce cruel, inhuman or degrading treatment at DPFC. The Ombudsman periodically reports on the implementation of her recommendations.