Ratifying OPCAT and preventing ill-treatment in detention

If I were the Commonwealth Attorney-General in Australia today, a sad reality is that reports would appear on my desk, with alarming regularity, about ill-treatment in places of detention in Australia and areas under the control of the Australian government. One day it might be a report on the impact on asylum seekers and refugees of immigration detention in remote and offshore locations. The next might relate to the use of seclusion in prisons (including to “manage” people with a mental illness), the misuse of tasers by the police, or another aboriginal death in custody. Although detaining authorities in Australia do a lot of things right that don’t get public attention, when mistakes are made, or when appropriate systems are not in place or break down, the consequences can be tragic and have enduring impacts on detainees and the community. As Attorney-General I don’t need any more briefings from NGOs explaining the physical and mental impact of detention, particularly on children and other vulnerable groups, and I don’t need my staff to show me more figures on the cost to the government of detention-related litigation. I already know that preventing ill-treatment of people in the care of the state before it happens is a humane, sensible and cost-effective proposition. One of the best ways to prevent torture is to establish a system of independent monitoring and inspection of all places of detention that addresses system-wide issues and work constructively with detaining authorities to improve conditions. It is for these reasons that I fully supported a decision of the Australian government in 2009 to sign the Optional Protocol to the Convention against Torture (OPCAT), a treaty that is based on preventing torture through the monitoring and transparency of places of detention. In the years since this signature, important consultations and discussions have taken place between states and territories, oversight institutions and civil society. However, the time to move forward is now. As Attorney-General I will ensure Australia quickly ratifies this important UN instrument, so we can move from pledges to action.

Ratification of the OPCAT requires Australia to designate a body(s), known as a National Preventive Mechanism (NPM) to conduct monitoring visits to all places of detention in Australia, present recommendations to detaining authorities and work constructively with them to address shortfalls. The NPM(s) would be responsible for monitoring immigration detention (including in offshore territories where Australia retains “effective control” of detainees), prisons, police lock ups and transport vehicles, locked psychiatric wards, and any other place that a person is deprived of their liberty by the state. Since the division of responsibility for places of detention is shared between the Commonwealth (immigration detention as the key area) and the states and territories (most other places) I would urge the state and territory Attorneys-General to prioritise preventing torture so that an NPM can be designated and OPCAT can be ratified and swiftly implemented. OPCAT ratification also opens up all places of detention to occasional visits from the UN Subcommittee for Prevention of Torture, a UN Committee that will work cooperatively with the government by assisting in identifying systemic issues and providing advice and support to the NPM.

Monitoring places of detention against international standards can prevent torture by identifying practices that can lead to cruel, inhuman or degrading treatment, such as overuse of seclusion and restraint, which might have become normalised in a context of a particular place of detention. But in some cases, particularly when it comes to refugees and asylum seekers who have not committed any crime, the best prevention of ill-treatment is not to lock them up in the first place. As Attorney-General I would remind the government of Australia’s legal obligations under the Refugee Convention that detention of refugees and asylum seekers should be a last resort and only when less restrictive alternatives have found to be unsuitable in each individual case. Even then, detention should be for the shortest possible time. Detention on offshore and remote locations raises particular concerns that this already vulnerable group, many of whom may have already been subject to torture or have fled from the risk of torture, could be re-traumatised by their conditions of detention and the prospect of a prolonged or indefinite stay.

It is difficult to see how the full range of appropriate and adequate safeguards and programs as required by international law can be provided in such remote locations. These include legal and medical assistance, and meaningful and culturally appropriate recreational or educational programs. Monitoring of these conditions by the Australian NPM (if and when it is established under the OPCAT) will at least provide oversight about conditions and treatment offshore. The NPM will be able to go inside each place of detention and examine and collect first-hand information on the situation of the detainees from a holistic perspective. The NPM can not only look at documents but speak to asylum seekers and refugees in private, as well as with staff, to understand the conditions, treatment, processes, systems and challenges. They can then issue recommendations to government and work constructively to correct any deficiencies. But of course, it is still better to adopt less restrictive options in the first place, such as processing onshore and community-based placement.

As Attorney-General I would also emphasise the important role Australia can play in the region in preventing torture, consistent with AusAID’s development objectives which include enhancing justice and human rights for the poor. In this respect, prohibition of torture must be a driving priority given the absolute prohibition of torture under international law and its corrosive effect on the victim and society more generally. In some countries in the region, police routinely use torture and ill-treatment to extract a confession from an accused. Without adequate forensic resources or training in proper investigation techniques, obtaining a conviction through a tortured confession is all too easy. Even when laws exist that preclude the use of evidence obtained by torture in legal proceedings, it may be difficult for a defence lawyer to establish that torture has occurred because often independent medical reports are not obtained as required under international (and sometimes domestic) laws, and judges may not question the circumstances surrounding the confession. By providing technical assistance such as forensic tools and training for criminal justice actors, and supporting domestic law reform efforts to align laws with international standards contained in the UN Convention against Torture and the OPCAT, Australia can play a leadership role in this region on this important issue. But surely we would have more credibility as a leader if we ourselves have ratified the OPCAT.

Rebecca Minty is an Australian human rights advocate currently working at the Association for the Prevention of Torture (APT), a Geneva-based international non-government organisation that works worldwide to prevent torture. You can follow her on Twitter at @rebeccaminty.