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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-02 Daily Xml
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OPCAT Agreement

The Hon. C. BONAROS (15:34): The commonwealth government ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) almost five years ago. The ratification should have been a clear commitment to the protection of the fundamental human rights of people in places of detention. The ability to carry out unannounced visits at detention facilities, conduct private interviews with people deprived of their liberties, and review documentation is an essential element of the OPCAT framework.

Australia's prison population growth rates are the third fastest in the world, and the disproportionate incarceration of First Nations people remains unaddressed. Of course, we are not just talking about prisons; we are talking about juvenile detention centres, immigration detention centres, hospitals, mental health facilities, aged-care facilities and facilities for people with disabilities.

The UN Subcommittee on Prevention of Torture (SPT) commenced a rescheduled visit to Australia for the first time on 16 October this year. A week later the United Nations released the following statement:

The United Nations Subcommittee on Prevention of Torture (SPT) has decided to suspend its visit to Australia due to obstructions it encountered in carrying out its mandate under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), to which Australia is a party.

The SPT delegation has been prevented from visiting several places where people are detained, experienced difficulties in carrying out a full visit at other locations, and was not given all the relevant information and documentation it had requested.

Despite its continued efforts to engage the authorities for the resolution of the problems, the SPT continued to be obstructed in the exercise of its mandate.

As a result of this, the SPT members felt that their 12-day visit, which began on 16 October and was due to run until 27 October, had been compromised to such an extent that they had no other option but to suspend it.

This is a clear breach by Australia of its obligations under OPCAT.

State parties have an obligation to both receive the SPT in their territory and allow it to exercise its mandate in full, as reflected in Articles 12 and 14.

It is deeply regrettable that the limited understanding of the SPT's mandate and the lack of co-operation stemming from internal disagreements, especially with respect to the States of Queensland and New South Wales, has compelled us to take this drastic measure.

This is not a decision that the SPT has taken lightly.

Given that OPCAT applies to all federal states without limitations or exceptions, it is concerning that four years after it ratified the Optional Protocol, Australia appears to have done little to ensure consistent implementation of OPCAT obligations across the country, including but not limited to passing overarching legislation to translate its international obligations into domestic law.

The work of the SPT is guided by the principles of confidentiality, cooperation, impartiality, and universality.

This is the basis on which States parties agreed to grant SPT unfettered access to places of deprivation of liberty, and to documentation and persons in such facilities.

The SPT is neither an oversight body, nor does it carry out investigations or inspections.

It is a mechanism that makes confidential recommendations to State Parties on establishing effective safeguards against the risk of torture and ill-treatment in places of deprivation of liberty.

Despite our numerous efforts to explain our preventive mandate, this was clearly not understood.

The SPT expects Australia to abide by its international obligations under OPCAT and provide appropriate assurances to satisfy the SPT that no further obstacles will be encountered in fulfilling its mandate so that the visit may be resumed in due course.

To put that in perspective, the subcommittee has only suspended visits three times in the past: to Rwanda, Ukraine and Azerbaijan.

The Law Council of Australia responded with the following statement:

The issues which the SPT is likely to investigate are not fanciful, but are of real ongoing concern in Australia.

They include conditions in juvenile and immigration detention, current practices regarding the seclusion and restraint of persons with disability, and the treatment of Aboriginal and Torres Strait Islander peoples in detention.

Concerns about systemic failures in these areas have been the subject of recent Royal Commissions.

This past week and a bit has again shown why an adequate legal framework is urgently required in this jurisdiction—and indeed across Australia. The clock is ticking: we have 82 days until deadline.

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