Last week, the United Nations torture prevention body – the Subcommittee on the Prevention of Torture (SPT) – published important guidance defining ‘places of deprivation of liberty’ under OPCAT.
The SPT has described the publication of this guidance as ‘a pivotal moment not only for the OPCAT system but also for the global torture prevention movement’ – a statement we wholeheartedly agree with at the Guardian’s office.
In short, the SPT has made it clear to countries signed up to OPCAT, including Australia, that their responsibilities apply to all places where people are deprived of their liberty. That extends far beyond prisons, police cells and detention facilities.
In fact, the SPT’s definition has specifically mentioned the following places as falling within scope for OPCAT:
- Mental health care facilities
- Boarding schools and religious schools
- Out-of-home care facilities
- Migrant detention facilities
- Compulsory quarantine and isolation places (including COVID-19 hotels).
To help unpack what this means for children and young people in South Australia, we’ve broken down current OPCAT arrangements and what needs to change.
What is OPCAT?
OPCAT is an international agreement aimed at preventing torture and cruel, inhuman or degrading treatment or punishment in places where people are deprived of their liberty. Countries who have signed up to OPCAT are required to establish a ‘National Preventive Mechanism’, which visits places where people are deprived of their liberty, monitors conditions of detention and helps prevent torture and other ill-treatment.
Australia is one of those countries and, since January 2023, has held obligations under international law to comply with OPCAT. This includes ensuring an NPM is in place to visit and monitor all places of deprivation of liberty across Australia, with a clear preventive focus.
How does OPCAT work in Australia?
Implementing OPCAT gets complicated in Australia, because we’re a federation and the Australian Constitution sets out different responsibilities and powers around lawmaking for federal, state and territory governments.
Australian, state and territory governments are each responsible for nominating NPM bodies, for places under their control where people are deprived of their liberty. Despite the significant time since Australia signed and ratified OPCAT, and despite Australia’s NPM obligations commencing on 20 January 2023, the Australian NPM is incomplete, with some jurisdictions (Queensland, New South Wales and Victoria) yet to nominate bodies. Others, like South Australia, have nominated bodies – but only for some, not all, places where people are deprived of their liberty.
One of the big factors behind compliance issues in Australia is the ongoing negotiations between the Australian, state and territory governments about who will pay for OPCAT. In short, while these negotiations are underway, Australia is not complying with its responsibilities under OPCAT – and has come under significant international criticism on this basis.
What does this mean for South Australia?
The Guardian, Shona Reid has been nominated as part of Australia’s NPM, through her existing role visiting and monitoring conditions of detention at the Adelaide Youth Training Centre. The only other bodies nominated in South Australia are ‘official visitors’ appointed under the Correctional Services Act 1982, to visit and monitor adult prisons and police lock-ups or police cells where people are detained for 24 hours or more.
As current arrangements stand, this leaves big gaps in the NPM’s scope to visit and monitor places where people are deprived of their liberty in South Australia.
While Shona is an active part of the NPM network, she has repeatedly spoken out that the arrangements in South Australia do not meet the intent or requirements of OPCAT.
“This new guidance, from the most authoritative international source on torture prevention, makes it clear that our government needs to expand its thinking and human rights protections for children and young people in South Australia,” Shona said.
“Torture and other cruel, inhuman or degrading treatment does not just happen in other places, or in other countries. It happens in South Australia too.
While children and young people in our criminal justice system are some of the most vulnerable to human rights violations, the SPT is telling us to think bigger and take a hard look at what’s happening to children in schools, childcare, hospitals, out-of-home care – just to name some.
I expect, and we should all expect, our government to do better in protecting children and young people from human rights violations. OPCAT is the international standard of best practice for doing so, and we are not close to implementing it in South Australia.I know our community cares, because I see the
outrage when it hits the front page of the paper or on the prime time news. I know our community is calling out for better treatment of all our children, because it could happen to any child in our community.
I have repeatedly called on government for clarity about when we can expect action towards implementing OPCAT in South Australia. But, I am highly disappointed to say, I am yet to receive any indication that meaningful progress is being made towards enacting legislation and funding arrangements to establish this vital oversight mechanism for children and young people’s wellbeing in South Australia.
How many times, and in how many different ways, are we going to ignore what the United Nations tells us we need to do to protect and promote children and young people’s human rights?”
To read more about what the SPT had to say, you can read the full General Comment No. 1 (2024) on article 4 of the Optional Protocol (places of deprivation of liberty), or the UN media release.
