The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an instrumental international human rights treaty. The United Nations General Assembly officially adopted OPCAT in December 2002 and it has been in force since June 2006. OPCAT is an ancillary treaty to the original 1984 Convention Against Torture (CAT), which aims to prevent States subjecting individuals under their jurisdictions to coercive, violent or inhumane treatment or punishment. OPCAT intends to strengthen the existing regime by providing the framework for the United Nations to monitor, inspect and report on States’ observance of CAT. As of April 2017, 83 States have ratified the protocol and a further 16 have signed it.
OPCAT importantly addresses the weaknesses of the United Nations’ existing reporting mechanisms that had relied on States’ cooperation and disclosure. The treaty instead creates an independent Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment (Subcommittee on Prevention) to impartially investigate allegations against States. By ratifying OPCAT, States are required to grant representatives from the Subcommittee on Prevention unrestricted access to any place under its jurisdiction where persons are or may be deprived of their liberty. The Subcommittee on Prevention may make confidential recommendations to States and assist in developing strategies to improve protections of the persons against torture and inhumane treatment. OPCAT also requires States to establish independent domestic National Preventative Mechanisms (NPMs) to undertake similar roles in monitoring and reviewing States’ abidance by CAT. OPCAT thus seeks to prevent breaches of human rights by increasing the transparency in State detainment institutions.
The effectiveness of OPCAT, however, continues to rely on States’ willingness to submit themselves to scrutiny. While Australia signed OPCAT in 2009, it has no effect until the Federal Government brings it into force by enacting relevant legislation. In February 2017, the Federal Government has finally announced that it intends to ratify OPCAT by December 2017 after consulting with the states and territories. It is expected that the Commonwealth Ombudsman will be responsible for coordinating the NPMs.
This Government promise to ratify OPCAT comes at an especially critical time, following the 2016 Royal Commission into juvenile detention in the Northern Territory. It is pertinent for the Australian Government to ratify the treaty as part of its wider commitment to improving the domestic human rights crises in places of detainment. The Australian Human Rights Commission has identified five primary forms of detention in Australia that reviews will likely be targeted at: adult imprisonment, juvenile detention, police custody, involuntary detention in a closed psychiatric institution, and detention in immigration detention centres.
Justice Action, however, firmly believes that the Australian Government cannot truly give effect to OPCAT without engaging with those who have experienced or are experiencing detention. It is essential for the Government to consult with those whose rights they intend to protect. In response, the Australian Human Rights Commission has stated that it is eager to work with detainees and ex-detainees during a second round of consultation from late 2017 to 2018. While this is heartening, Justice Action continues to urge the Government to centralise, rather than simply acknowledge, the experiences and voices of those who are the most affected.