Yesterday at the Department of Foreign Affairs and Trade’s annual NGO Forum, the Foreign Minister and Attorney-General announced that Australia would ratify the Optional Protocol to the UN Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT).
What is it all about?
The OPCAT is a treaty which aims to set up a worldwide network of independent oversight for prisons and other facilities where people are deprived of liberty (including makeshift facilities, prisoner transport and many kinds of closed institutions). Under this treaty, States parties are to set up bodies known as National Preventive Mechanisms. With various relevant internationally-agreed minimum standards as a reference (as well as national standards they develop themselves), these mechanisms’ task is to inspect closed institutions regularly to improve accountability – and ultimately to improve the system to the point where physical and psychological harm is minimised.
States parties also accept an obligation to allow periodic visits by the UN Subcommittee on Prevention of Torture (SPT). Since 2007, this Subcommittee has been travelling the world, overseeing governments’ efforts to implement the OPCAT. Its members cooperate with the local authorities and issue confidential reports so as not to politicise the vital prevention work. In fact, the whole ethos behind the OPCAT is cooperative. OPCAT proponents knew that naming and shaming institutions or governments with poor detention conditions is less effective than working with them quietly to improve. Having said that, the SPT can still speak out if it encounters egregious behaviour on the part of States.
83 countries have already become party to the OPCAT and 64 have set up their National Preventive Mechanisms; both numbers are growing.
Is it new?
No. In fact, the OPCAT was adopted by the UN General Assembly in 2002. It was the brainchild of Swiss philanthropist Jean-Jacques Gautier, who was inspired by the activities of the International Committee of the Red Cross, which visits prisons during times of war to check for compliance with the Geneva Conventions and makes recommendations for improvement. Gautier lobbied for many years for a treaty like OPCAT, because the Convention Against Torture itself was not being respected in many places of detention around the world.
Australia signed the OPCAT in 2009, but for reasons which are not entirely clear, has taken a very long time to ratify it (treaties only become binding on ratification). Informed speculation suggests that negotiations with the states and territories, which are responsible for most places of detention in Australia, have been protracted. The Attorney-General reassured state and territory governments in his speech yesterday that his ‘Government will not usurp their authority or responsibilities by this announcement.’ Other federations have faced similar difficulties with OPCAT.
Then there is the perennially thorny issue of the cost.
What are the benefits for Australia? Do they outweigh the costs?
Detention monitoring costs money; that is an inescapable fact. Teams of expert detention facility visitors need salaries, equipment and travel expenses if they are to be effective. Most states and territories do not yet have such OPCAT-compliant mechanisms in place.
However, poor conditions of detention cost more.
The riots in youth detention in Victoria have been attributed to poor conditions which were observed years before, but left unremedied. The damage caused by just one riot was estimated to cost up to $10 million to repair. In NSW, the Bureau of Crime Statistics and Research found last month that the number of assaults in that state’s prisons has been soaring, elevating the potential for costly damage in that state as well.
The costs of fixing a system in crisis can be enormous, and are the direct result of failure to take a preventive approach to poor conditions of detention. An NPM would be far less costly, particularly over the long term. Overincarceration and prison overcrowding are growing problems in Australia and are set to cost a lot more if left unaddressed.
It should also be noted that WA and NSW both already have Inspectorates of Custodial Services, which are the very types of bodies foreseen as making up an NPM. The Attorney-General has said the Government intends to ‘make the best use of existing arrangements and resources and focus on areas of priority’ to keep costs contained. The NPM can also get up to speed quickly by learning from the experience of counterparts in New Zealand and the UK (for example).
Is this really necessary? We are talking about criminals after all…
Actually, the OPCAT applies to all kind of places where people are deprived of their liberty, including psychiatric facilities, remand centres and other places accommodating innocent people. It also applies to immigration detention facilities, although the Australian Government will no doubt argue that offshore ones are outside its reach, and other jurisdictions are also seeking to keep the scope narrow.
In any case, we should care about prisoners too. Luminaries such as Fyodor Dostoevsky, Sir Winston Churchill and Nelson Mandela have observed that a society may be judged by how it treats those it detains. Prisoners are at the mercy of the state, and that makes them vulnerable. In addition, more than a quarter of Australian prisoners are Indigenous, and nearly a third have long-term health conditions or disabilities limiting daily activities such as education and employment. If such people are not kept in decent, humane conditions and provided with adequate health care, the costs to our society (both in terms of welfare and reputation) are deservedly substantial. Keep in mind that almost all prisoners will be released one day, and it is desirable for them not to leave prison in a worse state than that in which they entered it.
So ratification is a good thing?
Yes. The Government should be congratulated for yesterday’s announcement.