Commonwealth Ombudsman publishes report on the readiness of Australia to implement OPCAT

Today the Commonwealth Ombudsman, Michael Manthorpe, published a report which provides a comprehensive and contemporary overview of Australia’s readiness to implement the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT is an international treaty designed to strengthen protections for people in situations where they are deprived of their liberty and potentially vulnerable to mistreatment or abuse.

OPCAT requires the establishment of a system of independent monitoring for places of detention. Independent monitoring includes consideration of conditions, practices and treatment that could amount to cruel, inhuman, or degrading treatment or punishment.

OPCAT also provides for visits by the United Nations Subcommittee on Prevention of Torture (SPT) as a further safeguard of protections for people in places of detention. The SPT recently announced it will visit Australia in the coming months.

The report examines the work of 55 existing Commonwealth, state and territory inspection and oversight bodies as part of a baseline assessment of OPCAT readiness. The report also discusses what effective implementation should look like.

A critical obligation arising from OPCAT is the establishment of a system of regular preventive visits by independent bodies, known as National Preventive Mechanisms (NPMs).  When Australia announced its ratification of OPCAT in December 2017, it exercised its discretion to delay the establishment of its NPMs for three years. All jurisdictions need to nominate NPMs to enable Australia to comply with the requirements of OPCAT. We have now passed the mid-point of the three year period, yet so far only the Commonwealth and Western Australia have nominated NPMs.

While the report highlights that there are existing inspection and oversight bodies in all jurisdictions, it also describes that there are gaps in oversight, scope, resourcing and in some instances a lack of genuine independence in the inspecting bodies in various jurisdictions. The report therefore serves as a baseline against which to track progress over time.

“The next critical step is for jurisdictions that have not done so to nominate NPMs”, Mr Manthorpe said. “This is more than a technical, bureaucratic requirement. Over time, all jurisdictions will need to address the gaps between the current state described in the report and what OPCAT requires. I look forward to working with all jurisdictions on this important endeavour.”

The report complements the work being done by the Australian Human Rights Commission (AHRC), led by Human Rights Commissioner Edward Santow. While the AHRC’s work has focused on engagement with civil society, the Ombudsman’s report is based on engagement with and self-assessment by the entities that currently have a role in oversight and inspection of places of detention.