By Thomas Weston
Week after week, Australians are confronted by tragic scenes in the media that expose the inhumanity of Australia’s policy of mandatory offshore detention for boat arrivals without a valid visa. A 23-year-old Iranian man named Omid recently died after self-immolating on Nauru. Days later, a 21-year-old Somali refugee, Hodan Yasin, suffered critical injuries after setting herself on fire. Last year, a whistle-blower from Wilson Security made allegations of torture including waterboarding and ‘zipping’ detainees to metal beds using cable ties and throwing them into the air in a parliamentary inquiry into abuse at the Nauru Regional Processing Centre. These events highlight the need for Australia to urgently ratify the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT can be ratified by any State that has ratified or acceded to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT). Australia is currently a party to this Convention. Though Australia signed onto the agreement in 2009, it is yet to be ratified. The Government recently commented that ratification is being ‘actively considered.’
Support for the ratification of OPCAT is widespread. In 2012, the Joint Standing Committee on Treaties (JSCOT), a bipartisan committee of Federal Parliament, considered OPCAT ratification and unanimously recommended it. The Australian Human Rights Council (AHCR) and the Law Council of Australia (LCA) have both strongly recommended ratifying OPCAT. In an open letter to Attorney-General George Brandis, 64 diverse organisations argued for the ratification of the OPCAT. Last year at the UN Human Rights Council’s official review of Australia’s human rights policies, many countries lined up to criticise Australia’s treatment of refugees, and also noted Australia’s “inadequate treatment of Indigenous people, the high level of violence against women, and the spread of Islamaphobia.” They too urged Australia to urgently ratify OPCAT.
Whilst Australian law already strongly prohibits all forms of torture, the ratification of OPCAT would recognise the importance of supporting and strengthening the measures already in place and enhance Australia’s commitment to the UNCAT’s values and protections. A significant benefit of ratifying OPCAT would be the establishment of a National Preventative Mechanism (NPM) to monitor detention facilities. A NPM would have an inspection focus, and would be empowered to regularly examine treatment of detainees, make recommendations to improve the condition of the treatment of detainees, and submit proposals and observations concerning existing or draft legislation. Establishing a NPM would unify a number of different bodies that currently conduct independent oversight of Australia’s immigration detention facilities. The two primary bodies currently performing this role are the Australian Human Rights Commission (AHRC) and the Commonwealth Ombudsman. However, the monitoring of detention facilities has been “largely ad hoc, and in some instances, lacking in transparency.”
Some of the deficiencies of the current oversight bodies include a lack of financial resources and a lack of independence. A recent submission by the LIV has revealed that funding issues with one of the major oversight bodies has impeded its ability to carry out its monitoring roles even on the Australian mainland. A further issue is the reliance on the Australian Government and its contracted managers to gain access to places of detention, the barrier of territorial sovereignty for bodies seeking access to Manus Island and Nauru, as well as the onerous financial burden of actually accessing these offshore locations. Finally, there are restrictive confidentiality conditions that inhibit monitoring. Articles 22 and 23 of OPCAT would oblige relevant Government authorities to examine the reports and recommendations of the NPM, enter into a dialogue with the NPM and disseminate and publish the reports of the NPM. This is hugely important in both giving the NPM real teeth to ensure that findings of human rights abuses are properly addressed and measures are put in place to prevent this from re-occurring. The publication of the NPM’s findings would also improve the transparency and accountability of offshore detention facilities.
Despite pressure from the public, the legal community, the media, and myriad other advocacy groups, the current policy of mandatory offshore detention for boat arrivals without a valid visa has bi-partisan support. The Coalition, the Labor Party and the Murdoch media “have each tried to sell us the illusion that all solutions have been exhausted and that deterrence is the only way.” The complexity of the immigration debate obscures the hollowness of this rhetoric to many Australians. The politicisation of this debate may also hinder OPCAT ratification despite its clear benefits. What the Government fears is transparency. They do not want the treatment of asylum seekers and refugees in offshore detention facilities to come under further scrutiny. This is why the Australian Border Force Act was enacted last year. The law imposes a two-year prison sentence for disclosure of “protected information” by an “entrusted person.” This led to the UN’s Special Rapporteur on the human rights of migrants, Francois Crepeau, to cancel his visit to Australia last year to investigate the plight of asylum seekers and refugees on Nauru and Manus Island. Crepeau commented that “the Act prevents me from fully and freely carrying out my duties during the visit, as required by the UN guidelines for independent experts carrying out their country visits.” This is because it places immigration and border protection workers in danger of criminal liability for speaking freely about conditions in offshore detention.
The Australian Border Force Act unnecessarily impedes bodies such as the UN in ensuring fundamental human rights are being protected when our national oversight bodies are already inadequately empowered and funded to do this very job. Last year Juan Méndez, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment, reported that Australia has failed to comply with its obligations “under international customary law.” By failing to provide adequate detention conditions, end the practice of children in detention and put an end to escalating violence and tension, Australia has violated the right of asylum seekers to be free from torture and other cruel, inhuman or degrading treatment, as provided for by articles 1 and 16 of the UNCAT.
Breaches of human rights are inherent in a system that detains people indefinitely. Considering the bi-partisan support for the current policy, it is imperative that we have a rigorous, open, and accountable oversight body to ensure conditions in detention facilities meet basic standards. Ratifying OPCAT and establishing a National Preventative Mechanism for detention facilities will not stop the atrocities that are currently occurring. Our immigration policy has become so heavily politicised that human lives are being sacrificed for political capital. What ratifying OPCAT will do is enshrine Australia’s obligations to protect vulnerable individuals from torture and other cruel and unusual treatment in order to help to prevent further harm. Despite an atmosphere of secrecy and obfuscation around conditions in offshore detention, we can remain hopeful that the Government will ratify OPCAT and thereby be formally bound to comply with our obligations under international law.
Thomas Weston is the Editorial Assistant of Law and Justice and is currently in his second year of a Graduate Entry Bachelor of Laws at La Trobe University. He has previously completed a BA (Hons) majoring in English Literature and History at the University of Melbourne.
As an Intern at the LIV’s Administrative Law and Human Rights Policy Section, Thomas’s research on the ratification of OPCAT contributed toward the submission to the Australian Human Rights Children’s Commissioner, ‘Ratifying OPCAT in the Context of Youth Detention’, available here.
 Joint Standing Committee on Treaties (JSCOT), Optional Protocol to the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (28 February 2012).
 National Interest Analysis  ATNIA 6 with attachment on consultation, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 18 December 2002,  ATNIF 10.
 Australian Border Force Act 2015 (Cth).
 Australian Border Force Act 2015 (Cth) s 42(1).
 Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, 28th session, Agenda item 3, UN Doc A/HRC/28/68 (6 March 2015) para 25.
 Ibid, para 31.