In June, Croakey reported concerns about delays with the implementation of a much-heralded United Nations treaty to prevent mistreatment in prisons, police cells and other secure settings due to federal-state arguments over funding.
The South Australian Parliament now has an opportunity to show national leadership on this important issue but concerns are being raised about limitations in SA’s approach, reports Steven Caruana, coordinator of the Australia OPCAT Network.
Steven Caruana writes:
South Australia is moving to implement an international treaty ratified by Australia in 2017 that has significant implications for the health and wellbeing of children and adults in custody and other forms of detention.
The Correctional Services (Accountability and Other Measures) Amendment Bill 2020 was introduced into the South Australian House of Assembly in May 2020 and passed through to the Legislative Council for consideration in July 2020.
It currently remains open to debate and amendments but is likely to be considered in the coming weeks. This is a critical time for efforts to ensure the bill achieves its desired outcomes amid concerns that it will be establishing a system of human rights-based oversight in prisons that does meet the requirements of the international treaty on which it is based.
During the second reading speech, Corrections Minister Corey Wingard noted the bill (and more specifically Clause 9):
…will ensure that South Australia complies with the inspection requirements of places of detention under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the associated Optional Protocol to the Convention against Torture (OPCAT), which the Commonwealth Government ratified on 21 December 2017.”
South Australia, along with its State and Territory counterparts are currently in the process of setting up inspection bodies [known as National Preventive Mechanisms (NPM)] to satisfy the obligations of the OPCAT treaty and Attorney General, Vickie Chapman noted in June that ‘[i]t is expected that an NPM model for South Australia will be formally agreed to by the Government later this year.’
The OPCAT treaty imposes an obligation on States that have ratified it to allow for periodic visits from the United Nations Subcommittee for the Prevention of Torture (SPT) to inspect any places where a person is detained or deprived of their liberty. Its real value however lies in the additional obligation to create an NPM.
The NPM is the domestic visiting body charged with undertaking regular, preventive visits to places of detention. Its aim is to ensure violations of human rights like those that were seen in Don Dale are prevented from occurring in the first place.
Although the OPCAT treaty does not prescribe the structure or model for an NPM, there are numerous principles the NPM must satisfy.
An NPM must:
- have functional independence (Article 18(1))
- be composed of multidisciplinary experts, striving for gender balance and adequate ethnic and minority representation (Article 18(2))
- be adequately resourced (Article 18(3))
- be safeguarded from reprisal or sanction (including safeguarding anyone assisting it in its functions) (Article 21(1)).
An NPM must have the power to:
- regularly examine the treatment of people deprived of their liberty (Article 19(a))
- make recommendations to the authorities to improve the treatment of people deprived of their liberty (Article 19(b))
- submit proposals and observations concerning existing or draft legislation (Article 19(c))
- conduct private interviews with detainees and any person they wish to interview (Article 20(d))
- choose the places they want to visit and the people they want to visit (Article 20(e))
- share information with the Subcommittee on Prevention of Torture (Article 20(f)).
An NPM must also have access to:
- all information regarding people in closed environments, including the number of detainees and their location and the number of places of detention and their locations (Article 20(a))
- all information regarding the treatment of people in closed environments and the conditions of their detention (Article 20(b))
- all places of detention and their installations and facilities (Article 20(c)).
On face value
Broadly speaking, the South Australian bill seeks to promote the ‘safe and secure management of prisoners held in correctional institutions’ and ‘the rehabilitation of prisoners.’ Clause 9 of the bill however deals specifically with the introduction of an Official Visitors program to replace the existing Visiting Inspectors, which are appointed and administered by the Department for Correctional Services.
Visiting Inspectors conduct regular inspections of South Australian prisons; to monitor and report on the treatment and conditions of prisoners; and to assist prisoners to raise and resolve concerns and complaints. They can access people, places, and records (except medical records) and attempt to resolve issues at the prison level.
On face value it may appear that this scheme already meets the requirements of OPCAT but in an independent assessment of the Visiting Inspector schemes compliance, the Commonwealth Ombudsman reported in 2019 that the program was ‘not functionally independent’, ‘did not publish annual reports of their inspections’ and ‘did not have legislative protections and immunities.’ Concerns about the schemes independence go back as far as 2012, when the South Australian Ombudsman noted that while the scheme provided a level of welfare support, detainees ‘perceived [it] to be identified with the department.’
Acknowledging these shortfalls, Minister Wingard noted during the second reading debate that ‘the scheme we were left with, that was there before, was not OPCAT compliant.’ He then asserted that the new Official Visitor scheme would remedy this by ‘strengthen[ing] the independence of the scheme; and allow for the appointment of diverse, skilled, independent and dynamic inspectors…’
Interestingly he also stated the bill would ‘shift the focus of the scheme from inspection to one that considers and investigates prisoner complaints, which will assist in creating greater transparency and accountability.’ Clause 9 of the bill received little attention in the debate of the House of Assembly and understandably so because it does in fact improvement on the existing inspection mechanism.
Despite its good intentions, the bill has drawn criticism for being ‘ill-considered’ with regard to its OPCAT compliance. It has been argued that the functional independence issues of the Visiting Inspectors scheme are not remedied. The new bill instead ‘puts the inspectors in the invidious position of performing oversight of the same department from which it receives remuneration and resources.’
The Swiss NPM, the National Commission on the Prevention of Torture (NCPT) received identical criticisms in 2017 after commissioning a legal opinion on its own independence. The NCPT operates as a decentralised unit assigned administratively to the Federal Department of Justice and Police (FDJP), which is responsible for prisons and police cells. Although not subordinate to directions of the FDJP, the NCPT’s ‘administrative proximity to the FDJP could be seen by outside observers as impairing its appearance of independence and have an impact on its credibility.’
The legal opinion also concluded that ‘[f]rom the perspective of the OPCAT, it may be noted that the financial autonomy of the NCPT, given the manner in which it is attached to the Federal Administration, is clearly limited, thereby reducing the latitude available to it for performance of its activities.’
The bill has also received criticism for not having ‘separate[d] the function of monitoring from other extraneous functions such as complaint handling and prisoner advocacy.’ This may seem an odd argument to make given Minister Wingard’s earlier remarks that the focus of this new scheme was particularly on complaints investigations to create greater transparency and accountability.
While complaints handling is undoubtedly an important feature of accountability, it is a reactive endeavour requiring a complainant to bring issues to the attention of investigators.
OPCAT on the other hand is premised on prevention. As articulated by the Office of United Nations High Commissioner for Human Rights:
The mandate’s character is preventive; NPMs do not undertake investigations or adjudicate on complaints concerning torture or ill-treatment, even if they encounter such cases while carrying out their visiting function.”
The Western Australian Office of the Inspector of Custodial Services [which has been described as already OPCAT compliant], notes that its own mandate does not include complaints investigations and that ‘while it is often important that this Office understands the nature of a complaint this information is only used to understand whether systemic issues are occurring in the corrections system.’
The final criticism meted out at the bill is that it does not ‘clearly set out the powers of the official visitors’.
Minister Wingard responded to this very important concern by saying in the House of Assembly in the second reading debate that:
…any OPCAT articles that are not provided for in this bill will be best provided for by the underpinning operational processes that will be established by the inspectorate. So, if there are any technicalities or pieces that do not meet the OPCAT article, they will be established by the inspectorate, I am informed here.”
It remains unclear as to how Minster Wingard’s advisors believe that in the absence of legislative underpinnings the Official Visitors will exercise their OPCAT powers without hindrance.
How, for example, will detainees and staff be protected from reprisal for cooperating with the Official Visitors without statutory protections? We have seen clearly in other settings such as aged care where such protections do not exists, that ‘the most frequent issue raised as a barrier to making a complaint was the fear of reprisals.’
The SPT, established by the OPCAT treaty has done away with any ambiguity in its clear advice to State parties:
While the institutional format of the national preventive mechanism is left to the State party’s discretion, it is imperative that the State party enact legislation that guarantees a mechanism that is in full compliance with the Optional Protocol and the mechanism guidelines of the Subcommittee… The mechanism’s legal framework should also provide for outward-facing functions of the NPM, such as submitting proposals and observations on existing and draft legislation, advocacy, awareness raising and capacity building, and require a separate budget line in the State budget for the funding of the NPM, in order to ensure its continuous financial and operational autonomy. Moreover, it should outline privileges and immunities of NPM members and those who contribute to the NPM, including experts and civil society, while guaranteeing protection for persons who provide information to the NPM.”
Abroad OPCAT has led to significant changes in the way detained people are treated. In New Zealand, following a 2017 thematic investigations into use of restraints in prisons, the NZ Ombudsman called for the removal of tie down beds as a means of restraint for people at risk of self-harm. Whilst not immediately responding to the report, NZ Corrections banned the practice in 2019.
In the UK the Ministry of Justice took the unprecedented step of seizing control of Her Majesty’s Prison Birmingham in August 2018 from private contractor G4S, removing its governor and moving out hundreds of prisoners, after a severely critical report was published by Her Majesty’s Inspectorate of Prisons. The Chief Inspector said he would “never forget” the squalid conditions he witnessed.
In Norway, following recommendations made by the NPM about transfers between police and prison custody; the police service implemented a procedure to keep records of each detainee’s condition, whether or not the detainee had seen medical personnel, and to ensure information flow and cooperation with the prison service. The prison service took similar measures to assess the risk of suicide among new detainees.
The Federal Government has appointed the Commonwealth Ombudsman as its NPM, and while Western Australia has chosen its NPM(s), it has not made any legislative amendments or provided those bodies with any additional resourcing yet. The South Australian Legislative Council has before it the opportunity to ‘set the standard’ and be the first of the State and Territories to create establishing legislation for an NPM.
It is important that South Australia gets it right. The Public Health Association of Australia has commented that:
OPCAT provides an opportunity to raise standards through the identification of risk factors and cooperation.
There is a need for objective measures of wellbeing appropriate to the various contexts of closed settings, to include some of the less obvious ways in which harm is caused such as through institutionalisation, the mental health effects of incarceration, and loss of social and emotional wellbeing.”
Will South Australia (and Australia more generally) fulfil its OPCAT treaty obligations, or will it be a case of ‘close but no cigar’? For those detained, close enough is unfortunately not good enough.
Steven Caruana is coordinator of the Australia OPCAT Network, a coalition of over 90 non-government organisations, academics, statutory officer holders and interested individuals concerned with the effective implementation of oversight to Australian places of detention. Steven is also involved in policy development and regulation of aged care facilities and monitoring designated mental health units in New South Wales. Steven was formerly a detention inspector for both the Office of the Inspector of Custodial Services Western Australia and the Office of the Commonwealth Ombudsman. Steven is a Churchill Fellowship recipient and the current Australian Ambassador for the Human Rights Measurement Initiative.
See his previous article at Croakey
Looking in on the inside: why OPCAT is needed for Australian prisons, detention centres