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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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