Signs of Progress on Independent Detention Oversight

Last October, I wrote about Australia’s need for more independent oversight of places where people are deprived of liberty – preferably under the framework of the Optional Protocol to the Convention against Torture (OPCAT).

I am pleased to report that in the intervening months the Attorney-General’s Department has tabled a National Interest Analysis (NIA) for the OPCAT recommending that Australia proceed with ratification. An NIA is a document (usually prepared by the Attorney‑General’s Department or the Department of Foreign Affairs and Trade) tabled alongside a treaty to which the (Executive) Government intends to become a party.

The next stage (and current one for the OPCAT) is usually referral to the Joint Standing Committee on Treaties (JSCOT), which conducts a review from a Parliamentary perspective. The Executive doesn’t actually need Parliamentary approval to enter into treaties, but seeks it as a matter of (good) practice anyway. As part of these reviews, JSCOT takes public submissions, and the Castan Centre made one on the OPCAT last week. It should be available on the JSCOT website shortly, but in the meantime, it is here on our main site.

In 2004, JSCOT examined the OPCAT and recommended against ratification. However, we have come a long way since then, and the Rudd Government signed the treaty in 2009 (signing signals an intention to ratify, but doesn’t bind the Government to the treaty’s terms). Encouragingly, the new NIA is very positive about the OPCAT and gives a good overview of why it’s in the national interest for Australia to ratify it.

Our submission urges JSCOT to endorse the NIA and support ratification because:

  • The OPCAT is designed to improve conditions for, and treatment of, those deprived of their liberty. As I pointed out in my previous blog post on this subject (and expand upon in the submission), Australia can do better on both counts (in some cases, much better).
  • Transparency and accountability are essential where the State has complete control over people’s lives, and presently Australia’s places of detention (which article 4 of the OPCAT defines broadly) lack a consistent, coordinated system to ensure transparency and accountability.
  • Ratification of the OPCAT (in the good company of an increasing number of like‑minded countries – 62 at the time of writing) would reinforce the Australian Government’s commitment to tackling cruel, inhuman and degrading treatment (‘ill‑treatment’), which it demonstrated in 2010 with the enactment of a specific offence of torture in the Commonwealth Criminal Code.
  • The cost of prevention by means of regular monitoring is relatively modest, and in any event is outweighed by the potential negative impacts of ill-treatment on our society and our international reputation.

In the context of recent revelations about Serco and the release of final report of the Joint Select Committee on Australia’s Immigration Detention Network, it is timely to reflect on the plight of those in detention, who often suffer ‘out of sight and out of mind’ unless they take drastic measures such as hunger-striking or attempting suicide. An independent National Preventive Mechanism (NPM) under the OPCAT would shine a light on immigration detention centres and all sorts of other places where people are detained. It would see that existing standards are being maintained, or suggest changes to standards where necessary.

Article 10 of the International Covenant on Civil and Political Rights (which Australia ratified in 1980) requires that anyone deprived of liberty be “treated with humanity and with respect for the inherent dignity of the human person.” Around Australia governments have taken a range of measures to ensure compliance with this important guarantee – such as the establishment of Prison Ombudsmen’s Offices and enabling complaints to Human Rights Institutions – but there is little coherence to our ‘system’ to prevent abuse and ill-treatment in detention, and much of the work focuses on complaint-handling rather than active prevention. This is what the OPCAT promises to rectify. By making existing oversight bodies part of an NPM with a lead body coordinating the whole regime, we would stand a much better chance of ensuring respect for Article 10 (not to mention the prohibition on cruel, inhuman and degrading treatment or punishment in Article 7).

Unsurprisingly, cost has been a major stumbling block, and the establishment of new bodies at either the state or federal level to inspect places of detention is unlikely in the current economic climate. Still, as the NIA points out, there is plenty of scope to implement the OPCAT using existing oversight bodies.

Even though some additional funding would be required to ensure the system could fulfil its preventive mandate properly, the cost would be exceedingly modest in proportion to the cost of running correctional facilities, immigration detention centres and other places of detention. The report of the Joint Select Committee on Australia’s Immigration Detention Network says the cost of the immigration detention network alone in 2010-11 was $772 million. The amount spent on corrections (including administration) was estimated at $2.6 billion in 2010. In this context, the cost of establishment of a formal inspection mechanism would be relatively minuscule. In a presentation to a recent Monash University conference on Closed Environments, a representative from Canada’s Office of the Correctional Investigator pointed out that his office costs only a tiny fraction of the Corrections budget (similar to Australia’s at $3 billion annually) to run, but has an important impact on the daily lives of Canadian prisoners.

Of course this is only half of the cost-benefit equation. Australia also stands to benefit from OPCAT ratification and implementation in various ways. For one thing, international experience has shown that independent oversight of closed environments is key to ensuring human rights violations do not occur. As such, the OPCAT could help to prevent awful international headlines such as “Aborigine ‘cooked’ to death in prison van” or “Perth police taser unarmed man 13 times.” If the Government values Australia’s reputation as a bastion of human rights and fair treatment (and it frequently says it does), it should not be complacent about maintaining that reputation.

As the NIA acknowledges, there are also other potential costs, both direct and indirect, of failing to implement a proper prevention mechanism. For example, the cost of investigating and prosecuting allegations of ill‑treatment in detention (as States parties to OPCAT’s parent Convention, the CAT, are obliged to do) can be significant; and inhumane treatment in detention can undermine public faith in the criminal justice system.

Taking all of this into account, the case for ratification of the OPCAT is clear and compelling. Australia promised in its responses to the Human Rights Council’s recommendations during the Universal Periodic Review last year that it would “[s]peed up the process of the ratification of the OPCAT”; and ratify the OPCAT “as soon as possible,” “as a high priority,” and “without further delay.” It’s now time to act on these undertakings.

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