In 2017, the Commonwealth Government signed an international agreement to undertake independent inspections of all places where people are detained in Australia. The aim is to prevent abuse of people who are locked up in places like prisons, youth or juvenile detention centres and police cells, or unable to leave areas like secure wards in hospitals.
This agreement is the ‘Optional Protocol to the (United Nations) Convention Against Torture’, but it is usually known as OPCAT. Now, four years on, there is a bill before the SA parliament to implement OPCAT, with arrangements to start in January next year.
People are generally detained for correctional purposes or for their rehabilitation or mental health. Most of these people have little power or voice, and some, such as children and young people, are particularly vulnerable.
Under OPCAT, bodies that are independent of government are empowered to oversee the treatment of people in detention, through visits and inspections, to help prevent torture and other cruel, inhuman or degrading treatment or punishment. These independent oversight bodies are called National Preventive Mechanisms (NPMs). The Training Centre Visitor (TCV) role is proposed to be the NPM for youth justice detention within South Australia.
The OPCAT bill is a critical opportunity to help prevent the sorts of damaging and distressing practices we have witnessed in South Australia where vulnerable people have been detained or restricted, such as those uncovered in the Oakden report.
The Office of the Guardian has provided feedback on earlier drafts of the OPCAT Implementation Bill to try to ensure that it is OPCAT-compliant. We have also consulted with other stakeholders who have expertise and experience in this area, including academics and other oversight agencies.
OPCAT sets out fundamental principles (called ‘articles’) that help guarantee the independence of NPMs. It is crucial that these are met to ensure NPMs will be in a position to do their work effectively and fearlessly.
We believe that the current bill before Parliament still requires the following fundamental changes if OPCAT is to be truly effective.
We recommend that:
- NPMs be clearly granted the right to have contact with the international Subcommittee on the Prevention of Torture (a requirement of Article 20).
- The powers of NPMs clearly include the power ‘to submit proposals and observations concerning existing or draft legislation’ ( Article 19(c)).
- The TCV should be able to monitor children and young people wherever they are detained, not just when detained in the Kurlana Tapa Youth Justice Centre, for example, the City Watch House.
- Because the bill gives the Governor (ie Cabinet) such broad powers and processes to make regulations that it may affect the independence of NPMs, several changes be made to clause 19, including-
– removing or limiting the possibility of regulations for the exemption of ‘a person or a class of persons’ from OPCAT monitoring – as that class of persons could include police or correctional officers
– removing or limiting the possibility that a Minister or Chief Executive of a government department may exercise discretion about what regulations can be made – as this is potentially a conflict of interest given that NPMs are monitoring the systems and performance of their own departments
– avoiding the proposal that a Minister could impose a code, standard or policy, that interferes with NPM independence - The proposal to allow a Minister to introduce regulations to “make further provision in relation to the functions and powers” of an NPM needs to be reworded to prevent the risk of the government limiting or minimising NPM functions and powers.
- The required review of the new Act should be brought forward by a year so that it happens after the third, not fourth year of OPCAT implementation.
- The TCV’s functions and powers under the Youth Justice Administration Act 2016 should reflect the full range of OPCAT required functions – not only inspections
- The bill needs to better protect people detained in medical facilities, including hospital emergency departments and the children and young people held in the Mallee Ward of the Women’s and Children’s Hospital and other facilities that may be created or adapted to hold children and young people under specialised orders.
If you would like more information about our recommendations for the current bill, please contact our Principal Policy Officer, Alan Fairley at alan.fairley@sa.gov.au.
