Australia’s circuitous path towards the ratification of OPCAT, 2002–2017: the challenges of implementation

ABSTRACT

The Optional Protocol to the Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT) passed the United Nations (UN) General Assembly in 2002. Its objective was twofold: first, to extend the role of the UN in monitoring the standards of detention in Member States through inspection visits; second, to require States to establish internal national preventive mechanisms (NPMs) to monitor their compliance with these international obligations. This article describes the various steps in the 15-year sequence that preceded Australia’s ratification of OPCAT in December 2017. The process has been fraught with political ambivalence: by the Commonwealth Government, concerned not to surrender any part of its sovereignty to an international body; and by the States and Territories, as the principal jurisdictions responsible for various forms of detention, concerned as to the impact OPCAT might have on their day-to-day administration of places of detention. The competing arguments and political ambivalence that have emerged during this 15-year sequence towards ratification are highlighted. It is likely that the model that Australia adopts will initially fall short of best practice. Nevertheless, an opportunity still exists for Australia to contribute to regional approaches towards detention standards and accountability protocols.

KEYWORDS:

• OPCAT
• Australian ratification and implementation
• human rights
• places of detention
• national preventive mechanisms
• civil society

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No potential conflict of interest was reported by the author.

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Richard Harding

Richard Harding is Emeritus Professor of Law and Criminology at the University of Western Australia. He was formerly Inspector of Custodial Services for Western Australia.