Ratifying and Implementing OPCAT:
Has Australia missed the boat?
Presentation by Professor Richard Harding
Melbourne, 21 February 2012
Preamble
The purpose of this presentation was to alert people to the real danger that OPCAT might never be ratified and implemented in
Australia. There had been a period of drift, during which the public discourse had dried up.
One reason for this was that Australia was caught up in a policy of the
Department of External Affairs that no treaty should be ratified until virtually every implementation detail was settled and in place. In the case of a treaty that required the States and Territories to take positive steps by way of creating NPMs and in a context where the notion of external and autonomous accountability of places of detention has barely taken hold, the opportunities for delay and prevarication were manifold.
It should also be said that the nature of inspection systems is that it is impossible to lay out their precise scope in advance. There must be very much an element of trial and error, of mapping the extent of the obligations, of working out protocols and priorities on the ground.
Experience of established autonomous agencies (the European
Committee for the Prevention of Torture (CPT), the British Chief
Inspector of Prisons, the WA Inspector of Custodial Services, and so on) has been that the jurisdiction takes several years to mature. A rule that nothing can be done by way of treaty ratification until all the issues are thoroughly understood and detailed protocols mandated is out of line with experiential reality.
The initial commitment to sign, ratify and implement OPCAT had been made by an ALP Government that held a comfortable majority.
Whilst that situation still prevailed, prevarication would not be fatal.
However, the fragility that had characterised the Government since
August 2010 was a matter of great concern. The Coalition was known, with its 2003/04 blanket opposition to the signature of
OPCAT, to be hostile to the idea of allowing the Sub-committee for
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the Prevention of Torture (SPT ) to visit and inspect places of detention in Australia. The Coalition also expressed the view that there would be no need for the establishments of National Preventive
Mechanisms (NPMs) within Australia, as the nation was already an exemplar of human rights compliance.
Moreover, it was predictable that the States – now predominantly
Coalition governed, whereas in 2007 they had been predominantly
ALP – would take the opportunity if a change of federal government occurred to slow down the OPCAT process or kill it completely.
The aim of my presentation was, therefore, to put some urgency back into the matter. The target audiences were committed supporters,
NGOs and lobbyists who comprised much of the conference delegates and also the Commonwealth Government representatives.
The greatest “success” that the presentation could have was to seem to be proven wrong. That in fact has happened. On 28 February there was a joint announcement by the Attorney General and the acting
Minister for External Affairs that Australia would now move to the ratification stage via publication of the National Interest Analysis
(NIA) and hearings before JSCOT.
The Presentation
1.
Recent History
The first part consisted of a brief overview of events since
January 2008, the time at which the lobbying of the new Rudd
Government to sign and ratify OPCAT began in earnest.
Australia had signed in May 2009. After that, as mentioned, very little had appeared on the public record.
1 What activity had occurred within Australia had been bureaucratically driven and was not transparent
By contrast, there had been a considerable amount of international activity. During the last four years 27 additional nations had ratified OPCAT, bringing the total to 62. (The
Philippines has subsequently ratified, in March 2012.) The membership of the SPT had been expanded from 10 to 25. The
1 On 8 June 2011 the Australian Government accepted six recommendations arising from the UN Human Rights Council Universal Periodic Review urging
Australia to ratify OPCAT. This acceptance was not publicized.
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SPT now had in place a structured program of national visits, both to inspect places of detention and to assist nations in establishing their NPMs. New Zealand had been elected as a member of the SPT, and had established in the course of four years viable and OPCAT-compliant NPM arrangements.
2.
Myths in the Australian debate
In the discussions preceding the NIA process and in the course of the NIA itself, various issues were raised as possibly causing difficulties in implementation. They included the following:
(a) The reach of OPCAT is too extensive in that the definition of “places of detention” is far-reaching;
(b) “Torture” does not occur in Australia, so that it is demeaning and inappropriate to ratify a Convention whose main focus appears to be “torture”;
(c) The definition of “cruel, inhuman or degrading” is unclear and potentially would impact upon the ability of authorities to manage places of detention;
(d) Australia already has effective internal accountability systems to ensure that places of detention are managed fairly and decently;
(e) The aspect of OPCAT concerned with establishing NPMs would be too expensive;
(f) SPT visits to Australia would be intrusive; and
(g) The protection of standards in places of detention is traditionally and essentially a State responsibility, so that the imposition of standards through the device of
Commonwealth utilisation of the external affairs power of the Constitution would undermine the balance of
Australian federalism.
3.
Realities in the Australian debate
(a) Coverage of places of detention can, and should, be prioritised. In practical terms (numbers of detainees, severity and potential length of the detention situation), he most important are: prisons, police lock-ups, closed
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psychiatric institutions, 2 juvenile detention centres, and immigration detention facilities. The numerous other situations involving detention by authority of the State can be identified as OPCAT arrangements mature, and covered when appropriate.
(b) “Torture” is defined so as to require some purposive intent, e.g. to obtain a confession. For practical purposes we can proceed on the basis that torture does not occur in Australia. Exceptional situations that might be considered torture would in any case be covered by the notion of “cruel” or “inhuman” treatment.
The UN Convention highlights torture in its title because that was the historical context in which it was developed.
However, for practical purposes of ordinary governance in civilised countries, the notion of “cruel, inhuman or degrading” (CID) treatment is intended to be the main focus.
(c) It is said that, because CID is not a common law term, the courts and the authorities do not know with sufficient certainty what it means. However, there is a great deal of case law available – for example, in the European Court of Human Rights. There are also numerous UN Reports, related reports such as those of the Committee for the
Prevention of Torture (Europe) and even common law case law in British courts. It is not a complex concept to understand.
Australian courts have started to become familiar with the jurisprudence surrounding the concept of CID, and autonomous statutory agencies such as the Australian
Human Rights Commission and the WA Inspector of
Custodial Services invoke this concept as a matter of course.
In terms of constraints upon the authorities responsible for managing places of detention, it is crucial to
2 Discussion at the conference suggested that other closed disability institutions should be included in this “health” category.
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understand that ratification of OPCAT would not open up to external scrutiny the objectives of detention, but only the particular manner in which it was carried out. For example, if the principal policy objective of a State prison system is secure confinement, and little or no attention is given to rehabilitation or resettlement, OPCAT arrangements would not work in such a way as to enable the Commonwealth to order a State to pursue rehabilitation and resettlement. The only Constitutional basis for Commonwealth legislation would be to ensure that the policy of secure confinement was carried out in practice in such ways as to avoid the infliction of CID.
This point needs to be emphasised because the prime example of an OPCAT-compliant specialist inspection agency in Australia – the WA Inspector of Custodial
Services – has a remit that goes beyond avoidance of CID to the purposes of imprisonment and management practices underlying those purposes. Newly created
NPMs would have a remit that would be much more narrowly defined.
(d) Existing internal accountability mechanisms are mostly not OPCAT-compliant. Harding and Morgan (2008) 3 reviewed the range of existing specialist agencies in
Australia, and found that very few met OPCAT basic standards. Typically, they report internally to the detaining Department; they do not have free and untrammelled access to places of detention; they lack autonomy; and there is no system for measuring the extent to which their findings are reflected in changing practice.
Generalist inspection agencies have been created bth at
Commonwealth and State levels that are OPCATcompliant in relation to their structure and status.
Notably, these include Ombudsman offices and Human
Rights Commissions. However, these agencies have been created to cover a multiplicity of functions and activities.
3 Harding, R., and Morgan, N., Implementing the Optional Protocol to the
Convention against Torture: Options for Australia. Australian Human Rights
Commission publication, 2008, passim.
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Their principal expertise does not necessarily lie in inspecting closed institutions against international human rights standards nor are they funded primarily to do so. Some of them strive to fill the inspection hiatuses, but their ability to carry out OPCAT-type functions is inevitably patchy and inconsistent. An illustration of this is the fact that the Australian Human Rights Commission is about to cease inspection of immigration detention facilities on the basis that it can no longer justify using so much of its resources on this one issue out of the many that fall within its remit.
(e) Autonomous inspection is surprisingly inexpensive. The
UK Chief Inspector’s office runs at something around
0.4% of the cost of running the various activities that it inspects. The WA Inspector’s office is funded in this range also. Even more strikingly, the Office of the
Corrections Investigator (Canada) – a specialist agency that is fully OPCAT-compliant – costs 0.15% of the cost of running the federal prison system in that country.
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State anxieties about the cost of establishing and running
NPMs seem misplaced, therefore. Moreover, large agencies always carry fat, whilst small ones seldom do so.
It would not be far-fetched to levy agencies such as
Police, Corrective Services, Immigration or Health the amount of running an inspection agencies – though of course these new NPMs must have their own budget allocation direct from central government if they are to conform with OPCAT requirements. The point is, then, that autonomous inspection could be carried within the relevant functional areas without any additional cost.
It should also be said that each jurisdiction has a plethora of non-compliant agencies. They are seldom linked into a cohesive structure, often unaware of each other’s role and modus operandi and do not produce the costbenefits that an efficient inspection system will bring forth. There would be savings by way of rationalisation
4 The OCI budget is C$4.5 million, whilst that of Corrections Canada is C$3 billion.
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as States established OPCAT-compliant NPMs whose presence rendered these other agencies redundant.
The other matter discussed in the presentation concerned the cost-benefits of establishing such agencies. These include on the “savings” side the likelihood that external accountability can assist governments to head off expensive law suits, as is happening with immigration detention; and on the benefits side the likelihood that agencies will gradually come to do their job better in policy terms and more effectively in unit-cost terms.
(f) SPT visits to Australia would not be intrusive. The present capacity of the SPT is to visit approximately six countries per annum. This could rise to ten as the efficiency improves. There will be 70 or so States Parties by the time Australia ratifies. Even if the SPT visited
Australia on a rotating basis equal to that of all other parties, no more than one visit every seven years would be likely to occur. These visits typically would involve visiting between ten and fifteen places of detention drawn from all categories and every State. Such a presence would barely be noticeable, let alone intrusive.
The fact is that, for a country like Australia, SPT visits would be largely symbolic.
The real thrust and point of OPCAT elates to the establishment of the NPM network.
(g) The balance of federalism will not be disturbed at all. On the contrary, it will be enhanced. OPCAT itself (see
Article 17) makes positive provision for multiple NPM agencies. The mechanism envisaged for Australia 5 is that each State will establish its own network of NPMs (or if it prefers a single all-encompassing NPM for all places of detention within its jurisdiction) and that these, in turn, will liaise with the Central or Coordinating NPM. The latter will be a Commonwealth body, preferably the
Australian Human Rights Commission.
5 See Harding and Morgan (2008), pp. 40-43.
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Each State will thus be enabled to contribute to the development on the ground of national priorities and protocols. This has happened in New Zealand
(equivalent for NPM purposes to a single large Australian
State) where the four designated NPMs meet regularly with the Central NPM (the Human Rights Commission).
The very essence of an NPM scheme is that of cooperative federalism. It could not work as an imposed and centralist notion, nor is there the slightest suggestion that the Commonwealth envisages that this would be the model.
The “States’ rights” argument is always lurking in
Australian debate about governance. However, in this context it is a chimera.
4.
Other matters: the New Zealand example
New Zealand now has four years of OPCAT inspection under its belt. The priorities and modus operandi have developed through experience and discussion. Two matters stand out.
First, the initial sweep of places of detention revealed an unexpected pattern: that closed psychiatric institutions, more than the expected areas of prisons and police lock-ups, were the places where CID treatment was most prevalent. The priority could thus be set in the light of practical realities.
Second, agencies have come to understand that autonomous inspection against human rights standards actually enhances their work experience and efficiency. In its 4 th Report to the
SPT, the New Zealand Central NPM reported as follows:
“A high level of cooperation by the detaining agencies and willingness to engage with the NPMs has been a consistent feature of the OPCAT experience. There has been an increase in referrals from staff, who recognize the benefits and potential of the OPCAT mechanism to improve conditions, eliminate risk and prevent harm… There has also been a greater engagement with civil society and
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community organizations, extending beyond the national to the local and regional levels.”
New Zealand is an exemplar from a broadly similar cultural background of how OPCAT can work to the general social and organizational benefit.
As long as the OPCAT model legislation is not too rigid,
Australia can enable a robust inspection system to grow in the ways that New Zealand has done. An example of undue rigidity would be to specify NPMs in the various enabling statutes, with the consequence that amending legislation would be required to deal with changing circumstances. The New Zealand approach has been to enable changes to be made by way of
Gazettal, and that is what Australia should do both with the
State NPM arrangements and with the Commonwealth model.
There is still some cultural resistance to external accountability models in the Australian political psyche, for historically this country has not been so attuned to human rights issues as New
Zealand. However, ratification of OPCAT and prompt enactment of Commonwealth and State matching legislation would enable a viable system to grow at its own pace.
Australia may also consider invoking Article 24 OPCAT, permitting a three-year period for the establishment of an NPM system. However, in view we should grasp the OPCAT nettle now, for however long we delay the details can only be worked out on the ground. The sooner we start, the sooner we will be able to fine-tune our model so as to meet OPCAT expectations.
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