Tuesday, October 17, 2017
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Advocacy for Inclusion Blog

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AUG
28

Updates to OPCAT in the ACT

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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

Follow our Twitter: @Adv4I_Policy

 

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JUL
19

Advocacy for Inclusion responds to OPCAT ratification

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The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is due to be ratified by the Federal Government in December 2017.

As part of the Australian Government’s commitment to working closely with states and territories, Advocacy for Inclusion has been part of the consultation process in the ACT and has participated in a roundtable discussion, followed by a teleconference. We have now responded in turn to the Australian Human Rights Commission request for responses to the OPCAT consultation paper.  

What is OPCAT?

 

OPCAT is an international human rights treaty that aims to prevent ill-treatment in places of detention through the creation of a preventive-based inspection mechanism. Australia has signed OPAT in May 2009 and is yet to be legislated. In Australia’s case, and the ACT as a Territory, the OPCAT ratification will ensure places of detention where people are deprived of their liberty and basic human rights are detained and prevented from speaking out.

The ratification of OPCAT is to introduce a greater level of transparency and accountability for the treatment of people who are kept in detention facilities and also confined without choice or control in their circumstances. The Australian Government has committed to putting in place the following:

  1. The National Preventative Mechanism (NPM) – this area will be coordinated by the Commonwealth Ombudsman, in partnership with the Australian Human Rights Commission to ensure places of detention are inspected.

It is yet to be decided by the Australian Government if the model of the NPM will be a sole national body or only the Commonwealth Ombudsman through states and territories. How the final product is going to look and operate will be decided in due course of time.

  1. The UN Sub-committee on the Prevention of Torture (SPT) – the UN body of independent ‘experts’ responsible for conducting visits to places of detention in the states and territories and provide guidelines for the NPMs to assist in the performance of their duties.

In short, Advocacy for Inclusion supports the ratification of the OPCAT by Australia and welcomes the focus of the present consultation by the Australian Human Rights Commission. In particular, the National Preventive Mechanism (NPM) is seen as a useful oversight mechanism to protect the human rights of people with disabilities in indefinite detention, through its mandate to inspect places of detention and make recommendations to relevant authorities against restrictive practices.

Our Submission

 

In our submission, we are argued for the need for transparency and accountability in the monitoring of restrictive practices used against people with disabilities, particularly in institutional settings. It is part of our daily work, and we see the issue consistently. Our organisation’s experience tells us that restrictive practices are widely hidden from the broader community. The current system lacks 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. Support systems and services 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.

We consistently argue that restrictive practices are fundamentally violations of human rights. Such practices cause physical and psychological pain and distress, deprivation of liberty, and remove a person from their property. These practices can have significant hostile impacts on the person’s mental and physical health and wellbeing. It also denies a person basic respect for their inherent dignity as human beings. Restrictive practices must be eliminated in order to fulfil the human rights and wellbeing of people with disabilities.

Restrictive practices “are the deliberate or unconscious use of coercive power to restrain or limit an individual’s freedom of action or movement. There are five main forms of restrictive interventions: chemical, environmental, mechanical, and physical restraint, and seclusion.” Restrictive practices are fundamentally violations of human rights. They can cause physical and psychological discomfort or pain, deprivation of liberty, alter thought processes and deprive a person of their property. These practices can have significant adverse impacts on the person’s mental and physical health and wellbeing and this is evident in our daily work and expertise of knowledge.

In spaces where people with disabilities have little control and choice, and where power is exercised over them to extreme degrees including through physical force, people with disabilities can become violent toward each other or toward support workers as a form of protest. This issue is often referred to as “challenging behaviours”, and dealt with via restrictive practices, such as the use of psychotropic medications. It is often wrongly perceived that people with disabilities are safer in institutional settings where they are “cared for” and “with their own kind”. In our experience, lateral violence is very common in institutional settings but is very poorly recognised as a serious issue with major impacts on people with disabilities.

We strongly recommended that the National Preventive Mechanism (NPM), enacted through Australia’s ratification of the OPCAT, ensures oversight and accountability for restraint and seclusion of people with disability, with a strong focus on prevention. Advocacy for Inclusion has previously recommended that a national oversight body for the use of restraint and seclusion be established. Further, this body should adopt a social justice lens to ensure that restraint and seclusion are accurately recognised as abuse and a violation of human rights in group homes, congregate living arrangements and other institutional settings where people with disabilities are confined without choice and control.  

Check out our submission here in Word or PDF format: http://bit.ly/2vgAaN8

Follow our Twitter: @Adv4I_Policy

 

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