Wednesday, February 21, 2018
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Updates to OPCAT in the ACT



There have been several announcements this week around the ratification and changes in the ACT regarding the OPCAT (Optional Protocol to the Convention against Torture). Let’s unpack them:

  1. The ACT Government has introduced the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Bill 2017 into the ACT Legislative Assembly last week. Whilst we welcome the introduction of the bills, we are reluctant to hand out kudos just yet.

The definition of ‘places of detention’ within our new bill is fairly broad:

“place of detention, means any place that the subcommittee must be allowed to visit under the Optional Protocol, article 4, that is subject to the jurisdiction and control of the Territory. Note Under the Optional Protocol, art 4, the Territory must allow visits to any place under its jurisdiction and control and in which people are or may be involuntarily deprived of their liberty”.

The bill introduced this week covers actions to enable the UN Sub-committee on the Prevention of Torture (SPT) to visit places of detention. Fabulous – however the downside to this is that a group of UN ‘experts’ will only visit once or twice in a period of two to five years or more. This is a huge issue if the ACT wants to be serious about the role of monitoring places of detention.

Recognising that it is still early days for OPCAT, it is still a disappointment to see the lack coverage in the bill on neither the domestic monitoring responsibilities overall of inspectors nor the National Preventative Mechanism (NPM) that is to be coordinated by the Commonwealth Ombudsman to ensure that places of detention are routinely inspected.

It is absolutely vital that the ACT Government and the shared responsibility of the NPM to ensure that places of detention are routinely inspected on a regular basis. In line with our submission, we also expect that places of detention (including institutional living spaces) to be randomly ‘dropped in on’ with limited to zero warning to ensure practices are upheld to the highest standard and individual human rights are maintained at all times.

  1. Featured a Canberra Times article this week, it is evident that people with disabilities may have missed out, particularly the areas of institutional living.

The Federal Government will ratify the protocols of OPCAT by the end of the year and the rest of Australia, including the ACT, will be required to ensure detention facilities will meet the new standards after ratification. We question how much will change and how fast with the introduction of our new bill.

We welcome the focus on prisons as detention centres as well as aged care and mental health, but again, disability may have been missed out or has been shoved to the bottom of the pile when it comes to people with disability living in institutional living without choice or control. It is urged that the Government place the issue of restrictive practices to the top of the pile and push towards the elimination of restrictive practices in all places of detention in the ACT.

At present, the ACT largely continues to lose points on accountability measures. Because restrictive practices have serious consequences and are a form of violence, these practices must be accounted for and strictly monitored, yet they are not. This is what OPCAT is designed to prevent. Not only detention centres but also support services that work with people with disabilities in congregated and institutional living must be drastically improved so that people with disabilities are better supported to communicate and have their needs met in order to prevent the use of restrictive practices in the first place.

  1. The ACT Government is preparing to create an Inspector of Prisons within the ACT Ombudsman office in response to the recommendations of the Moss Review last year. Fantastic, only we will be watching to find out what exactly this means in terms of mechanisms of oversight and its role. What will the Inspector actually do?

We welcome the enthusiasm to create an Inspector of Prisons as this is needed. We continuously maintain that people with disabilities are overrepresented in the ACT criminal justice system, draining our economic resources when self-advocacy is the key to change as many of people that move through Advocacy for Inclusion’s space does not need to be in the prison system at all. Should the new and upcoming Inspector have the power to implement change in our prison system, they will be monitoring a rather small cohort of a prisoner population as it will decline when people with disabilities are focused upon and removed from the criminal justice system with reasonable support.

Wishful thinking it may be from a policy perspective but the argument is maintained: address the high levels of marginalisation of people with disabilities in ACT (within the housing, education, employment, exclusion, discrimination, human rights, etc.) and we will be on a path of restorative recovery. 

Check out our submission to the OPCAT here in Word or PDF format: Response to AHRC on OPCAT in Australia Consultation Paper, July 2017

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