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Australia's OPCAT problem

  • 17 November 2022
  Behind every human rights convention is a play of politics, a range of calculations law and policy makers consider. Australia’s ratification of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) came about as a reaction to the abuses recorded at the Northern Territory’s Don Dale youth prison. Interestingly enough, it was not because of Australia’s infamous offshore or onshore detention centres with their currency of cruelty.

In 2017, Australia’s then Attorney General, George Brandis, announced that ratifying OPCAT would ‘improve oversight of places of detention in Australia’, a process aided by the establishment of a ‘network of Australian inspectorates.’

The ratification brought Australia within the UN system of inspection and monitoring regarding the Convention Against Torture. The singular aspect of the protocol is its emphasis on prevention and avoidance of mistreatment and torture of those in detention. Emphasis is placed on states to embrace this preventative focus through the use of National Preventive Mechanisms (NPMs) to monitor all facilities where there is a deprivation of liberty.

To monitor compliance with OPCAT, UN independent inspection teams are permitted to conduct unannounced visits to any place where people are deprived of liberty. That right, at least when it comes to the United Nations Subcommittee on Prevention of Torture (SPT), arises under Articles 12 and 14 of the Protocol.

Last month, the governing authorities in New South Wales and Queensland thought rather differently of such obligations and rights. On October 24, a Corrective Services NSW spokesperson announced that members of the SPT were ‘refused entry without incident’ to the Mary Wade Correctional Centre, the Metropolitan Remand and Reception Centre Sydney and the Queanbeyan Court Cells for not receiving ‘prior approval’.

While OPCAT clearly grants the SPT rights to visit any facility of detention unannounced, the spokesperson insisted that all seeking to ‘visit a correctional site operated by or on behalf of the CSNSW must have prior written authorisation or will be refused entry’. Foreign officials including members of the SPT were not exempted from the requirement.

'Even the most treasured human rights are rarely separable from the context of politics. And on certain key instruments, Australian institutions have shown a distinct lack of willingness to pull their weight, at least consistently. Populism, pragmatism and cash remain recurring factors of resistance.'

NSW Corrections Minister Geoff Lee also thought it ‘unnecessary for the UN to demand to come and demand to get