Explainer: the Optional Protocol to the Convention Against Torture in South Australia

By Chynae Gibson, UniSA Law Student and Rights Resource Network Volunteer


1. What is OPCAT all about and how does it work?


The Optional Protocol to the Convention against Torture (OPCAT) is an international human rights agreement that establishes new or revised oversight mechanisms for places of detention and closed care facilities. The purpose of the OPCAT is to create a safeguard for those in vulnerable situations including those in the child protection system, aged care, and mental health institutions, to prevent systematic failures that can be described as cruel, inhuman or degrading treatment. After the abuses at the NT’s Don Dale Youth Detention Centre received international scrutiny, the federal Coalition government ratified the OPCAT, in late 2017. Upon ratification, Australia exercised its right to make a formal declaration under Article 24 of OPCAT to delay the commencement of its obligations for three years.


The OPCAT mandates that National Preventive Mechanisms (“NPM”) conduct preventive visits, on a regular basis and without prior notice. The UN Subcommittee on the Prevention of Torture similarly oversees places of detention and provides guidance to National NPMs to assist in the performance of their duties.


2. How would OPCAT work in South Australia?


South Australia will use OPCAT functions in existing oversight bodies, such as the Ombudsman SA and other existing commissions, to work cooperatively with Australia’s federation. The OPCAT puts principles into place for all places of detention such as aged care, juvenile detention and immigration detention. The NPM standards will be informed by international human rights law and practice in order to appropriately care for the particular needs of vulnerable groups who are detained. The South Australian Government will need to determine how these bodies will be properly resourced, and whether legislation such as the Correctional Services (Accountability and Other Measures) Amendment Act 2020 will be needed.


3. Would the OPCAT double up on existing oversight bodies or do something different?


The NPM bodies will complement rather than double up on existing review and oversight mechanisms like Ombudsman SA or the Guardian of Children and Young People. These existing statutory bodies that are already required to inspect places of detention and deal with complaints have the ability to either become an NPM or play a role in an NPM network. The OPCAT will help to clarify and separate out the different roles and responsibilities for different bodies tasked with standard setting, independent inspections, complaints resolution and advocacy for different places of detention in South Australia.


4. What are the next steps involved in implementing the OPCAT in South Australia?


The most significant change involved in implementing the OPCAT is to integrate it into our current services and ensure that they are prepared for those standards. SA Government will likely take a decentralised approach to SA’s NPM, meaning many monitoring bodies work together to perform the functions of OPCAT. To do this, SA Government will need to ensure that these functions are not mixed up with the other functions of the chosen body. Adequate monitoring requires extensive resources, in order to meet this standard, the monitoring bodies will need to be given significant additional resources.


Secondly, South Australia will need to consider legislative change, in May 2020 the South Australian Government introduced the Correctional Services (Accountability and Other Measures) Amendment Bill 2020 which proposed a plethora of changes that complement the OPCAT requirements. A key feature of this bill is the visitors’ scheme that it introduces, including at least one legal practitioner, one woman and one Aboriginal or Torres Strait Islander person, this will replace the previous volunteer-based scheme that has under-performed.


How can I find out more?


The Rights Resource Network has a Briefing Note with more information and one of our members, Associate Professor Laura Grenfell is an expert in this area who has published a range of articles and news items about the OPCAT. Check out Laura’s homepage here.


You may also be interested in this excellent new research by Laura and Dr Anita Mackay and Associate Professor Julie Debeljak on human rights monitoring in Residential Aged Care in the context of COVID19, with a focus on OPCAT monitoring, Royal Commissions and Coronial inquiries. It has been accepted for publication by Monash Uni Law Review in Volume 47 (to be published later in 2021 or early 2022), and the Review has kindly given us permission to publicly share the draft version of the article (it is now on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3795849).