Monitoring places of immigration detention in Australia under OPCAT

ABSTRACT

Australia’s ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in December 2017 indicated a commitment to closer engagement with the United Nations human rights treaty system and a welcome reaffirmation of independent monitoring of States’ compliance with their obligations under international human rights law. However, the extent to which this ratification represents a ‘victory’ for human rights remains to be seen and will depend on how OPCAT is implemented in Australia over the coming years. This article seeks to identify some of the challenges likely to arise in implementing OPCAT in the context of immigration detention in Australia. It starts by identifying the relevant places of immigration detention, before surveying the bodies that already monitor these places and considering whether they do so in an OPCAT-compliant manner. It concludes by considering some of the most pressing outstanding challenges likely to arise in the Australian immigration context and offering general recommendations on how they might be resolved.

KEYWORDS:

• OPCAT
• immigration detention
• offshore processing
• refugees

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Unless otherwise stated, references to detention ‘in Australia’ include all people deprived of their liberty who are under Australia’s jurisdiction and control, even if they are not in Australian territory.

2. As at February 2019, five IDCs were operational around Australia: North West Point IDC on Christmas Island, Yongah Hill IDC and Perth IDC in Western Australia, Maribyrnong IDC in Victoria and Villawood IDC in NSW.

3. As at February 2019, there were three ITAs (in Adelaide, Brisbane and Melbourne) and one APOD (in the Northern Territory) operational in Australia. Sometimes the term APOD is used as a broad category of non-IDC detention, including ITAs and other places in the community where people might be required to stay. However, for the purposes of this article, an APOD is a distinct type of detention facility separate from ITAs. As at February 2019, the Department’s website listed one APOD in Australia, located at the same address as the Mercure Darwin Airport hotel adjacent to Darwin International Airport (Department of Home Affairs 2018b).

4. The AHRC’s inability to visit Nauru and PNG has not prevented it from investigating and reporting on human rights issues arising there, for example in its National Inquiry into Children in Immigration Detention in 2014.

Additional information

Notes on contributors

Madeline Gleeson

Madeline Gleeson is a lawyer and Senior Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW Sydney. She has extensive experience working with forcibly displaced people around the world, including work on asylum seekers and refugees, statelessness, human trafficking and labor migration in Australia, Cambodia, Indonesia, Switzerland and South Africa. Madeline specialises in international human rights and refugee law, with a focus on the law of State responsibility, extraterritorial human rights obligations, and offshore processing.