Torture Convention - the Australian Government OPCAT announcement

The following is an edited extract from Senator the Hon George Brandis QC's announcement the Australian Government will ratify the Optional Protocol to the Convention against Torture. (The HRLC's media release welcoming the announcement can be found here.)

As most of you would know, Australia was a founding member of the United Nations and one of only eight nations involved in drafting of the Universal Declaration on Human Rights.

The committee that drafted the Declaration was chaired by Eleanor Roosevelt. She coaxed, wrangled and sometimes coerced a diverse committee of seasoned diplomats, cantankerous philosophers and renowned jurists. For Roosevelt, human rights were not some abstract concept or some burden imposed upon states from on high. They were earthier than that, grounded in people’s everyday experience.

Speaking almost a decade after the Declaration’s adoption, Eleanor Roosevelt asked a question that we must all continue to pose ourselves. “Where, after all, do universal rights begin?” Her answer? “In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere”. This morning, my focus is on Roosevelt’s small places, in particular, the places where people are detained at the hands of the state. Small though these places may be, they are of great consequence to the dignity of the individual.

Article five of the Universal Declaration is well known to all of you here this morning. In language that continues to resonate, it states simply “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As we all know, places of detention, prisons in particular, impose immense strain on everyone associated with them, prisoners or detainees of course, and their families, but also prison officers, and others who are responsible for the welfare of those detained. The moral obligation we find in Article five, and the legal obligations we find in later instruments such as the Convention against Torture, must be realised in circumstances that are extraordinarily challenging.

This is not to make excuses; it is to recognise, as Eleanor Roosevelt would have done, the importance of attending closely to the particular environments in which individuals find themselves. Such attention to context ensures that human rights are not merely fine sentiments, not merely cries into the void, but instead, are translated into real respect for dignity of actual individuals. Of course, Australia’s several jurisdictions have already established a variety of mechanisms to protect those rights for people in detention, but we cannot afford to be complacent.

So that is why I am announcing this morning that the Turnbull Government has decided to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly referred to as OPCAT. Australia signed OPCAT in 2009. That was three prime ministers ago. But I’m proud to serve, as I know my friend Julie Bishop is proud to serve, in a Government led by Prime Minister Turnbull that has now made the decision, which I know has been called for by many of you for many years, to ratify OPCAT. We intend to do that by December of this year, following consultation with the states and territories on our proposed model for ratification and implementation. This will be an important reaffirmation of Australia’s deep commitment to preventing torture and other mistreatment in our places of detention.

As you know, OPCAT creates obligations regarding oversight of places of detention. These are intended to assist states to better protect people in detention from torture and mistreatment. The aim is not to shame; it is not to engage in an act of moral vanity. It is to cooperate in a mutual endeavour to bring about a tangible improvement to the treatment of people in detention. Ratification of OPCAT will see Australia establish and maintain what is known as a ‘National Preventive Mechanism’ to prevent torture and mistreatment. Australia will also welcome visits by the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As you are aware, this is a subcommittee of the Committee against Torture. In implementing OPCAT, our focus will be on what might be termed ‘primary’ places of detention, such as prisons, juvenile detention, police cells and immigration facilities. Any environment in which the state deprives a person of his or her liberty poses unique challenges; such challenges are perhaps at their most acute in such places.

Recent events have reminded us of the human, financial and other costs of mistreatment in detention. The Government is of the view that ratification and effective implementation of OPCAT will encourage continuous improvement to inspection and conditions of detention. It will also assist in identifying and resolving issues before they escalate. The decision we announce today demonstrates the keen attention the Turnbull Government pays to the views of civil society and to recommendations received from international bodies.

Of course, almost all places of detention under Australia’s jurisdiction and control are administered by the states and territories. The Government will not usurp their authority or responsibilities by this announcement. We respect the central role played by the states and territories and we view them as partners in ratification and implementation of OPCAT. Accordingly, the Government’s approach to ratification and implementation is collaborative, cooperative and federated. It also aims to be practical and efficient. The National Preventive Mechanism will make best use of existing arrangements and resources and focus on areas of greatest priority. Australia’s National Preventive Mechanism will be established as a national network from among existing inspectorates. The Government proposes to task the Office of the Commonwealth Ombudsman with a facilitative coordination role. The Ombudsman will not have authority over other inspectorates. Nor will it engage in secondary inspections. Rather, it will work with existing bodies to share experience, undertake research, identify gaps and overlaps and coordinate interactions with the UN Subcommittee.

I would like to take this opportunity to thank the Australian Human Rights Commission, with whom the Government has been in dialogue in advance of this decision. I want to particularly thank and acknowledge Australia’s Human Rights Commissioner, Mr Edward Santow, who joins us here this morning and has been one of the driving forces behind the decision to ratify OPCAT. I also want to mention the important role of Megan Mitchell, the National Children’s Commissioner, for her work in raising awareness. The Human Rights Commission’s work over many years has helped to inform the Government’s considerations, and as I say, our dialogue has brought us to this decision point. I have invited the Human Rights Commissioner to continue this work and to help facilitate the effective implementation of OPCAT in Australia. Edward Santow will continue to seek input from civil society representatives – in other words, you in this room and others like you elsewhere – on Australian conditions of detention.

Torture and other forms of mistreatment have no place in Australia. The Government’s decision announced today recognises the prevention of torture and mistreatment must be an ongoing endeavour. Today the Turnbull Government reaffirms its strong commitment to that endeavour.

MichelleBennettUnited Nations, Prisoner Rights