Implementing OPCAT in Australia 2020 © Australian Human Rights Commission 2020. We encourage the dissemination and exchange of information presented in this publication and endorse the use of the Australian Governments Open Access and Licensing Framework (AusGOAL). Implementing OPCAT in Australia All material presented in this publication is licensed under the Creative Commons Attribution 4.0 2020 International Licence, with the exception of: • photographs and images • the Commission’s logo, any branding or trademarks • where otherwise indicated. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/legalcode. Australian Human Rights Commission In essence, you are free to copy, communicate and adapt the publication, as long as you attribute the Australian Human Rights Commission and abide by the other licence terms. Please give attribution to: © Australian Human Rights Commission. ISBN: 978-1-925917-23-9 Implementing OPCAT in Australia • 2020 For further information about copyright in this publication, please contact: Communications Unit Australian Human Rights Commission GPO Box 5218 SYDNEY NSW 2001 Telephone: (02) 9284 9600 TTY: 1800 620 241 Email: [email protected] Design and layout: Jody Stocovaz Cover image: iStock Internal photography: iStock The Australian Human Rights Commission is Australia’s National Human Rights Institution. It is an independent statutory organisation with responsibility for leading the promotion and protection of human rights in Australia. Further information about the Commission can be found at www.humanrights.gov.au/ about-commission. Authors: Sophie Farthing, John Howell and Edward Santow. Acknowledgements: • President Rosalind Croucher, National Children’s Rights Commissioner Megan Mitchell, Disability Discrimination Commissioner Ben Gauntlett. • Australian Human Rights Commission staff: Darren Dick, Lauren Perry, Liz Stephens and Leon Wild. • The Commission is grateful to all stakeholders that participated in the Commission’s consultations. The Commission especially acknowledges the generous support of the Asia Pacific Forum for the first round of consultation, and support provided on a pro bono basis by law firms MinterEllison, Henry Davis York (now part of Norton Rose Fulbright) and Hall & Wilcox. Edward Santow CONTENTS Human Rights Commissioner Australian Human Rights Commission Commissioner’s Foreword 5 List of recommendations 7 Commissioner’s Foreword 1. Introduction 11 2. Background 13 When an individual is detained, their human rights must continue to be respected. This is true regardless 2.1 About OPCAT 13 of whether the person is detained for committing a crime, or through no fault of their own—for reasons 2.2 Implementing OPCAT in Australia 14 as diverse as their migration status, their mental health or through quarantine to stop the spread of 2.3 What decisions have been made regarding OPCAT communicable disease. implementation in Australia? 15 2.4 Timeline 16 In December 2017, the Australian Government ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). In so doing, Australia 3. The Commission’s consultation 19 became bound under international human rights law to take additional practical steps to uphold the inalienable rights of people who are deprived of their liberty. Specifically, Australia has committed to 4. The importance of OPCAT in Australia 21 establish and run a coordinated system of independent inspections for all Australian places of detention, with oversight from the United Nations. 5. NPM model 23 The aim of the OPCAT inspection system is to identify practices that can cause mistreatment of people in 5.1 Australia’s NPM model 23 detention. This will give Australia a more effective ‘early warning system’, so that governments canprevent 5.2 Key features of NPM bodies 28 5.3 Assessing current detention inspection arrangements 31 human rights abuses arising or worsening. 5.4 Ensuring NPM bodies comply with OPCAT 32 Australia takes human rights seriously. However, we have also seen too many preventable deaths in detention, and too many people harmed unnecessarily. Just months before the Australian Government 6. Reporting on NPM activities 35 committed to ratifying OPCAT, we were reminded of its importance as images of serious mistreatment were published from inside the Don Dale Youth Detention Centre. 7. Resourcing of NPM activities 37 7.1 Establishment phase 37 Now, four years later, Black Lives Matter protests are taking place around the world. The protests highlight 7.2 Ongoing operation of NPM bodies 38 the disproportionate number of people of colour who are arrested and detained; and that too many of 7.3 Implementing NPM recommendations 38 these people continue to suffer harm, even death, while in custody or detention. Here in Australia, many protesters have focused especially on the extraordinary levels of incarceration and harm experienced in 8. Places subject to inspection 41 detention by Aboriginal and Torres Strait Islander people. 8.1 Definition of ‘places of detention’ 42 In February 2017, the then Attorney-General invited me to lead a consultation on how Australia should 8.2 Progressive implementation 45 implement OPCAT. The Commission’s interim report was presented to the Attorney-General in September 2017. This document, Implementing OPCAT in Australia, is the final step in our consultation process, and 9. A national approach to inspections and detention conditions 47 reflects input primarily from civil society, as well as from inspectorate and monitoring bodies, and a number 9.1 A proposal for national standards 48 of state and territory governments and independent agencies. I am grateful to the many individuals and 9.2 Stakeholder feedback on standards 49 organisations that gave so generously of their expertise. 9.3 Towards a national approach: guiding principles 50 9.4 Developing national guidelines 51 Through two phases of consultation, we have recorded strong community and civil society support for seizing this historic opportunity to shine a more powerful light on all Australian places of detention, so that 10. Incorporating OPCAT into Australian law and practice 53 human rights can be more effectively protected. 10.1 Establishing the NPM in formal legislation 53 Detention carries inherent risks of harm, and the Australian Government should be commended for 10.2 Alternatives to legislation? 55 confronting this difficult reality through its ratification of OPCAT. The treaty presents a practical means for Australia’s federal, state and territory governments to improve how we as a nation protect the basic rights of 11. Ongoing involvement of civil society 57 people in all places of detention. 12. OPCAT implementation strategy 59 Since our interim report, some important progress has been made. The Australian Government has appointed the Commonwealth Ombudsman to undertake inspections of federal places of detention Appendices 60 under OPCAT, and to coordinate the state and territory government bodies that are ultimately tasked Appendix 1 – Comparison with other OPCAT jurisdictions 60 with inspections in those jurisdictions. The Ombudsman has already made vital headway, by exercising its Appendix 2 – Submissions received to Consultation Paper 1 64 new OPCAT inspection functions, analysing current inspection arrangements throughout Australia, and Appendix 3 – Submissions received to Consultation Paper 2 67 consulting with key stakeholders and experts. To date, Western Australia is the only state or territory to announce its OPCAT inspection arrangements. 4 Implementing OPCAT in Australia • 2020 • 5 Commissioner’s Foreword The ratification of OPCAT is a once-in-a-generation opportunity to improve how we protect the basic rights of people who are deprived of their liberty. The immediate challenge for all Australian governments is to List of recommendations accelerate their work to implement OPCAT. Drawing on the views of stakeholders, Implementing OPCAT in Australia makes a number of recommendations to support Australian governments rising to that challenge. Broadly, the Commission recommends the National Preventative Mechanism (NPM) network be formally established as soon as possible, in a way that ensures all places of detention are subject to independent oversight. Implementation should be informed by human rights expertise and ensure Australia complies Recommendation 1 with its treaty obligations. Each National Preventive Mechanism should ensure: The Commission recommends an OPCAT implementation strategy, with clear and realistic timeframes. Implementing OPCAT in Australia outlines the four key elements for this strategy. • relevant officers receive human rights training on a regular and ongoing basis The first element focuses on the network of Australian inspection bodies, known as the NPM. The effectiveness of the NPM bodies will be the most critical factor in determining how successful OPCAT is in • relevant officers receive training and education regarding the needs Australia. of vulnerable people in places of detention, including the impact of intersectional disadvantage The Commission makes a number of recommendations to ensure these NPM bodies will be able to fulfil their mandate most effectively. This will involve steps to resource and support their activities, and • inspection teams can access technical expertise on human rights in to safeguard their independence. The Commission also proposes ways to support the