By Laura Grenfell and Steven Caruana
January 2022 is the date that all Australian jurisdictions need to have their National Preventive Mechanisms (NPMs) operational to meet Australia’s obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
OPCAT is aimed at ensuring the independent proactive monitoring of all places of detention - criminal and civil - in order to prevent ill treatment. This monitoring is important because these are closed environments where people are out of sight and out of mind and hence more vulnerable to ill treatment. Pre-OPCAT, detention monitoring has been predominantly reactive, focused on responding to harms or deaths after their occurrence rather than focused on reducing and preventing risks at the systemic level.
Australian jurisdictions have had four years to prepare for the January 2022 deadline - since December 2017 when the Coalition government ratified OPCAT, thus fulfilling its voluntary pledge to the UN Human Rights Council in Geneva.
Federal preparations for meeting the OPCAT deadline began with the appointment of the Commonwealth Ombudsman as the coordinating NPM in 2018. At the same time, the federal government surprised many by announcing its intention that Australian monitoring schemes under OPCAT would initially cover only ‘primary places of detention’ where people are detained involuntarily for 24 hours or more. This federal government approach excludes, for example, secure residential aged care facilities (RACFs) and Disability Group Homes (DGHs) where many residents are behind locked doors or unable to leave. The federal government justifies its exclusion of RACFs and DGHs on the basis that they impose less significant challenges than those in ‘primary places of detention’ such as prisons.
Putting aside RACFs and the Commonwealth’s responsibility for military, federal police and immigration detention, most places of detention operate under state and territory laws. This means that Australia’s obligations under OPCAT fall heavily on the states and territories.
In 2021 South Australia began its preparation for the 2022 deadline by amending its Correctional Services Act 1982 to establish the Official Visitor, a NPM entity dedicated to monitoring correctional institutions as well as prison transport vehicles. Without a separate legislative framework, this NPM entity falls short of a robust inspectorate model. In this regard, WA’s Office of the Inspector of Custodial Services (OICS)) is widely considered a model for other states because of its statutory independence, its separate operating budget from state Treasury, its 100% focus on prison monitoring, its power to report directly to Parliament and its considerable expertise. In SA, the legislative process to set up the Official Visitor took 11 months; the original half-baked scheme was strengthened by numerous cross-bench amendments which were largely due to the assistance of civil society as well as OICS in other jurisdictions.
In late August 2021 South Australia introduced a second bill, the OPCAT Implementation Bill 2021, to establish schemes for the monitoring of other places of detention: the Bill designates the Training Centre Visitor and the Principal Community Visitor the NPM entities responsible for monitoring youth detention (excluding residential secure facilities) and closed mental health settings while it adds the monitoring of custodial police stations to the Official Visitor. Before introducing the Bill, the government consulted with selected stakeholders and took on board some recommendations.
Although South Australia is making some improvements in its legislative implementation of these important international human rights standards, the OPCAT Implementation Bill 2021 still needs some strengthening in order to be more OPCAT compliant.
The following are two areas of concern:
First, the Bill needs to be amended to give the Training Centre Visitor (TCV) jurisdiction to undertake OPCAT monitoring of youth detainees wherever they are being detained – for example, if they are being held in the 19 ‘prescribed custodial police stations’, including the City Watch House. Currently the Bill only empowers the TCV to undertake NPM monitoring of those youth physically detained at SA’s Youth Justice Centre (Kurlana Tapa). There is evidence that youths are being detained at SA’s adult facilities. OPCAT requires that children in detention are monitored by those with expertise specific to youth-detention.
Second, the government has set out a list of facilities that will be prescribed for monitoring under the Bill. The concern is that these 18 facilities do not include the Emergency Departments in SA’s hospitals. The latest Annual Report of the PCV indicates that in one ED, the average stay of mental health patients is ‘exceeding the expected 24hr target and is no less of 36 hrs as a repetitive pattern’. On this point it is worth noting the observation of the NSW Chief Psychiatrist’s 2017 Review of seclusion, restraint and observation of consumers with a mental illness in NSW Health facilities that the emergency department was ‘regularly described as the most traumatic part of the consumer’s episode of care.’ In SA the Ombudsman SA has reported on a case in which a prisoner was in hard shackle restraint in the RAH ED for 4 days. Excluding EDs means SA’s monitoring of mental health facilities will be inadequate to meet OPCAT compliance.
To find out more about OPCAT in South Australia check out the Rights Resource Network SA Briefing Note.
Dr Laura Grenfell is an Advisory Group member of the Rights Resource Network SA and Associate Professor at the University of Adelaide’s Law School. Dr Grenfell teaches and researches in public law and has a particular interest in constitutional law, comparative constitutional law, human rights law and post-conflict justice. In 2019 Dr Grenfell co-edited Law Making and Human Rights (Thomson Reuters, 2020) with Professor Julie Debeljak .
Steven Caruana is the Coordinator of the Australia OPCAT Network , a coalition of non-government organisations, academics, statutory officer holders and oversight bodies interested in preventive human rights monitoring under the UN Optional Protocol to the Convention against Torture. Mr Caruana has also worked as an Assistant Director at Disability Royal Commission and is currently involved in monitoring designated mental health units in New South Wales.
Picture Credit: Coalition for the ICC website.