Why OPCAT is so important
Proactive inspections by the Ombudsman of the makeshift detention areas on boats used by the ADF show why OPCAT is so important in preventing human rights abuses.
In early October last year, representatives from the Commonwealth Ombudsman inspected two ships that had been retrofitted as floating prisons to be used by the ADF.
The boats are being used as part of Operation Resolute and have had detention areas installed on them to detain people at sea, including asylum seekers and foreign fishers.
The Ombudsman found that the conditions on the boats were “inhumane” and in breach of Australia’s international human rights obligations, and made a number of recommendations to the Department of Home Affairs.
I wrote about these detention boats for The Saturday Paper, covering the range of human rights concerns identified as part of the Ombudsman’s inspections and the long-running issues around the use of these retrofitted boats.
For many of the asylum seeker advocates who I spoke to for this story, the Ombudsman’s report offered rare transparency over an element of Australia’s offshore detention system that has always raised concerns but typically remained opaque and inscrutable.
The oversight would not have been possible without the Optional Protocol Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
As part of Australia’s obligations under OPCAT, the Commonwealth Ombudsman has been appointed as the Commonwealth’s National Preventive Mechanism (NPM), giving it the power to conduct proactive inspections of places of detention operated by Home Affairs, the AFP and the ADF.
Before this there was little, if any, oversight over the boats being used by Australia to detain people at sea.
“These visits to these vessels show the importance of OPCAT,” Commonwealth Ombudsman Iain Anderson told me.
“If not for that we wouldn’t have gone and visited them, we wouldn’t have jurisdiction over them. It’s a really important thing to shine that light of transparency on.”
This was backed by Refugee Council advocacy coordinator Graham Thom.
“We absolutely welcome the fact that we now have the NPM - this is why Australia ratifying OPCAT has been so important,” Thom told me.
“We now have some oversight into these practices and recommendations can be made.”
Under OPCAT, signatories must appoint an NPM and coordinate a system of regular, proactive visits to places of detention to identify human rights concerns and provide recommendations to prevent them.
In Australia, each state and territory, along with the Commonwealth, must appoint its own NPM to conduct these inspections.
Despite signing onto OPCAT 15 years ago and ratifying it seven years ago, Australia’s three biggest states are still yet to appoint NPMs and are locked in a funding deadlock with the federal government.
New South Wales, Victoria and Queensland are pushing for continual funding from the federal government to implement OPCAT, while the Commonwealth has offered only a one-off funding package.
Australia has now been in breach of its obligations under OPCAT for several years.
Last month’s federal budget contained no mention of OPCAT at all, and the one-offer funding proposal for the states has now expired, with the end to the funding stoush in sight.
The NPMs that have been appointed issued a joint statement following the budget, expressing “deep concern” about the lack of funding for OPCAT.
“This comes despite the high numbers of people deprived of liberty in the custodial system and in other detention environments in Australia,” the joint statement said.
“A properly functioning NPM Australia-wide is more important than ever. This is so that we can oversee what is happening to people in places of detention, identify risks before they manifest as torture or other ill-treatment, and provide expert advice to governments and those charged with the care of people in detention.”