20 Years Later and Australia Continues to Fail Detention Safeguards

This year, on June 22, marked 20 years since the Optional Protocol to the Convention against Torture, otherwise known as OPCAT, came into force. This agreement aims to establish and maintain safeguards against torture and cruel, inhuman, or degrading treatment specifically within places of detention. Building upon the UN’s Convention against Torture, OPCAT supports countries in meeting their obligations by mandating two key actions that signatories must undertake:

a)   Establishment of an independent body, also known as a National Preventive Mechanism (NPM)

NPMs are responsible for regularly inspecting all places of detention and closed environment. These include adult prisons and youth detention centres, as well as immigration detention facilities, aged care, and locked disability-specific facilities

b)   Allowing international inspections by the UN Subcommittee on the Prevention of Torture.

These visits are kept confidential, and the Subcommittee may only publish its findings if the host country permits it. Also, anyone who speaks to the Subcommittee is protected under OPCAT, ensuring that they cannot be punished for sharing information during the inspections.

Solitary confinement as a form of torture:

International law has consistently maintained that the use of solitary confinement in youth detention centres violates countries’ obligations under OPCAT and the UN Convention against Torture.

The UN Standard Minimum Rules for the Treatment of Prisoners (the ‘Mandela Rules’) define solitary confinement as isolation of at least 22 hours a day “without meaningful human contact”, and places strict conditions on its use in prisons. Solitary confinement, under the Mandela Rules, may only be used as a last resort, for as short a time as possible, subject to independent review, and only via the authorisation by a competent authority. Prolonged solitary confinement – lasting for over 15 days – is considered to amount to an act of torture and other cruel, inhuman or degrading treatment or punishment.

However, the Mandela Rules contain a crucial exception in relation to children in detention – it expressly forbids the use of solitary confinement against juvenile detainees for any length of time or in any circumstance. Citing the UN Rules for the Protection of Juveniles Deprived of their Liberty (the ‘Havana Rules’), disciplinary measures that constitute cruel, inhuman or degrading treatment – including solitary confinement – are strictly prohibited.

International human rights law is clear: solitary confinement in juvenile detention is a form of torture and cruel, inhuman or degrading treatment. Isolation practices that continue to be used in Australian youth prisons plainly violate Australia’s obligations under OPCAT.

Australia’s response to OPCAT

Australia signed OPCAT in 2009, but only officially ratified it in late 2017. Upon ratification, Australia immediately requested to delay the deadline for establishing its NPM for 3 years. This request was permitted, as was an additional 12-month extension due to COVID-19 challenges, resulting in a final deadline of January 2023. But this deadline has long since passed, and Australia has still not met its OPCAT obligations.

Australia opted for a multi-body NPM model, where the Commonwealth, states and territories each had their own NPMs established, to be overseen by the Commonwealth Ombudsman. However, three of Australia’s jurisdictions have yet to establish their NPMs – New South Wales, Queensland and Victoria – with all three citing federal funding concerns as the overriding reason for this failure. Further, Australia has also failed to uphold its other key obligation under OPCAT – the inspections by the UN Subcommittee on the Prevention of Torture. Upon being denied access to certain detention facilities and not receiving requested documents, the SPT terminated its 2022 visit to Australia, and called out Australia for what it deemed a ‘clear breach’ of its human rights obligations under OPCAT.

Australia must prioritise a comprehensive NPM framework that can operate effectively to ensure that Australia’s OPCAT obligations are upheld and that vulnerable people in detention are afforded proper protection. Children in detention, in particular, are being subjected to isolation practices that are causing them severe and often irreparable harm. International law explicitly recognises these practices as torture, yet Australia’s youth justice system continues to utilise them with no consequence or avenue through which children can seek safety from harm. Australia must comply with its obligations under international law and commit to prohibiting torture in all its forms across Australia.