Page 268 - Week 01 - Thursday, 15 February 2018
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not limit the ability of the Legislative Assembly to amend or repeal a bill or enact laws explicitly overriding it.
On 22 December 2017 the commonwealth government ratified the optional protocol to the convention against torture known as the OPCAT, making Australia the 86th state party. Eighty-six countries have signed up to this important torture prevention treaty. Australia had previously signed the OPCAT back in 2009, signalling an intent to become a state party, but the recent ratification brings binding legal obligations on Australia.
Ratifying this treaty represents an important step for improving protection of people deprived of their liberty in Australia. The right to be free from torture and cruel, inhuman or degrading treatment or punishment is recognised in international law as an absolute right that cannot be limited, even in times of emergency or disaster. Prohibition of torture has achieved the status of customary international law and is codified in the UN convention against torture that Australia ratified in 1989. This prohibition is also contained in section 10 of the Human Rights Act 2004.
Noting that the risk of abuse, ill-treatment and neglect can exist wherever persons are deprived of their liberty, even here in the ACT, the OPCAT is an innovative treaty that provides a practical framework for states to fulfil their commitment to prevent torture and cruel, inhuman or degrading treatment or punishment. There have been several high profile cases across Australia in recent years that have emphasised the human, financial and other costs of mistreatment in detention. Likewise in the ACT there have been a number of inquests, reviews and audits about places of detention and treatment in custody, the findings of which tell us that we can and must do things better at times.
The ACT government views OPCAT ratification as an important and significant mechanism to preventing ill-treatment. The global nature of the OPCAT brings with it comparative experience and expertise from other state parties that will be an excellent resource for Australia and from which the ACT can benefit. I very much welcome the ratification and am convinced that the OPCAT framework will have a positive impact in the ACT as well as nationally.
In terms of the practical mechanics of the OPCAT, the treaty requires states to establish mechanisms for independent monitoring of places of detention at two levels. At a domestic level states must designate or establish national preventative mechanisms, or NPMs, that are empowered to regularly visit any place of deprivation of liberty in its jurisdiction and control. At an international level state parties must allow the UN subcommittee for the prevention of torture to visit any place of detention within its jurisdiction and control. So the treaty actually requires us to allow this.
When ratifying the OPCAT in December 2017 Australia elected under article 24 to delay the obligation to establish or designate the domestic monitoring bodies or NPMs. This means the immediate obligation on Australia and, where relevant, the ACT is to allow UN subcommittees to access all places of detention should the subcommittee elect to visit Australia. In addition to accessing places of detention, the
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